KSW v The State of Western Australia
[2025] WASCA 114
•24 JULY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KSW -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 114
CORAM: VAUGHAN JA
HALL JA
ARCHER JA
HEARD: 5 MAY 2025
DELIVERED : 24 JULY 2025
FILE NO/S: CACR 72 of 2024
BETWEEN: KSW
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: CHRISTIAN DCJ
File Number : IND XXXX of XXXX
Catchwords:
Criminal law - Historic child sex offences - Two complainants - Whether trial judge erred by directing that evidence relating to first complainant could be used as propensity evidence in respect of second complainant - Whether trial judge erred in directing jury as to the use that could be made of evidence of uncharged acts - Whether a miscarriage of justice arose from a submission of the prosecutor that the complainants had no reason to lie
Legislation:
Criminal Code (WA), s 183, s 189(3), s 320(2), s 320(4), s 326 (repealed)
Evidence Act 1906 (WA), s 31A
Result:
Extension of time granted
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S H King & M Ajduk |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
CB v The State of Western Australia [2006] WASCA 227; (2006) 175 A Crim R 304
Harman v The State of Western Australia [2004] WASCA 230; (2004) 29 WAR 380
JEL v The State of Western Australia [2022] WASCA 32; (2022) 58 WAR 295
KHA v The State of Western Australia [2022] WASCA 173; (2022) 305 A Crim R 265
LNV v The State of Western Australia [2019] WASCA 180
MDP v The King [2025] HCA 24
MNA v The State of Western Australia [2020] WASCA 84
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56
R v T [1999] QCA 376
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285
JUDGMENT OF THE COURT:
The appellant was convicted of 10 historical child sex offences after trial. The first two offences occurred in 1985 (counts 1 and 2). The complainant in respect of those counts was the appellant's female step‑cousin (TMS), who was 13 years old at the time. The remaining offences occurred between 1990 and 1998 (counts 3, 4, 7, 8, 9, 10, 11 and 14). The complainant in respect of those counts was the appellant's stepdaughter (MLW), who was aged between 5 and 12 years old at the time. The appellant was sentenced to a total effective sentence of 10 years' imprisonment.[1] He now seeks leave to appeal against his conviction.
[1] ts 384.
The appeal notice was filed approximately six months after the time for appealing expired.[2] An extension of time is required. In an affidavit, the appellant explains the delay as arising from a misunderstanding on his part that his trial lawyer would file an appeal on his behalf.[3] When he became aware this had not occurred, he made efforts to contact Legal Aid. Some further delays arose in obtaining transcripts of the trial. The full extent of the delay is not adequately explained and whether an extension should be granted depends on the merits of the grounds of appeal.
[2] WAB 1 - 2.
[3] WAB 6 - 8.
There are three grounds of appeal.[4] The first ground alleges that the trial judge erred by directing the jury that the evidence relating to TMS could be used as propensity evidence in respect of the remaining counts relating to MLW. The second ground alleges that the trial judge erred in directing the jury as to the use that could be made of evidence of uncharged conduct in respect of TMS. The third ground alleges that a miscarriage of justice arose from a submission by the prosecutor that the complainants had no reason to lie.
[4] WAB 10.
The evidence of sexual offending against TMS was admissible as propensity evidence in respect of the counts relating to MLW. That evidence was capable of supporting an inference that the appellant had a sexual interest in female children who were members of his family, and that he had a tendency to act on that interest by engaging in sexual behaviour when the opportunity arose. The evidence had significant probative value in relation to the alleged offending against MLW. The trial judge's directions to the effect that the evidence could be used as propensity evidence were correct.
The evidence of an uncharged act related to an incident of sexual penetration that occurred following a trip to the Perth Royal Show by the appellant and TMS. The State led the evidence to put the charged offences against TMS into proper context and remove any potential implausibility that counts 1 and 2 were isolated incidents. The trial judge directed the jury that the evidence of the Royal Show incident could explain why TMS was unable to provide details of other specific incidents because the sexual behaviour occurred on more than one occasion.[5] The trial judge correctly directed the jury as to how the evidence could, and could not, be used.
[5] ts 331 - 333.
The prosecutor made a brief comment in closing to the effect that neither complainant had a motive to lie. The comment was in response to a suggestion put during cross‑examination that one of the complainants had a motive to lie. No risk of a miscarriage of justice arose as the trial judge gave the jury clear directions in relation to the issue. Her Honour referenced the prosecutor's comment and directed the jury in orthodox terms as to the onus of proof.[6]
[6] ts 330 - 331.
In our view, leave to appeal should be granted on each of the grounds but the appeal be dismissed. As leave to appeal is to be granted, the extension of time should be allowed.
Relevant trial evidence ‑ counts 1 and 2 (TMS)
Counts 1 and 2 occurred in 1985 when TMS was 13 years old and the appellant was 21 years old. At that time, TMS's mother was married to the appellant's uncle. The relationship between the appellant and TMS was described as step‑cousins.[7]
[7] ts 115.
When TMS was 13 years old and in her first year of high school, she asked the appellant whether he could teach her martial arts. He agreed and began to attend at her house once or twice a week to conduct training sessions. These sessions would take place on the back patio or in the sunken lounge of TMS's house.[8] The sessions would occur after school whilst TMS's mother and stepfather were at work.
[8] ts 120.
TMS said that during one of the training sessions, on a date unknown between 20 July 1985 and 6 October 1985, the appellant charged towards her whilst she was stretching. TMS gave the following evidence:[9]
[9] ts 121 - 122.
How old were you when that happened?‑‑‑13.
Can you describe what happened?‑‑‑I was ‑ we were standing there stretching and he started charging towards me.
Okay. When you say you 'were standing there stretching', whereabouts were you both?‑‑‑He was at one end of the ‑ the living room, I was at the other end ‑ the ‑ the end where the window is. And, yeah, he just charged towards me.
And what happened next?‑‑‑He pushed me down onto my back and he raped me.
Okay. I'm just going to take a step back. You mentioned that you ‑ he pushed you down onto your back?‑‑‑Mm hmm.
Where was his body in relation to yours?‑‑‑In front of me.
How did he push you down to the ground?‑‑‑I don't remember clearly but I think it was from my shoulders, [because] I had my legs splayed at the time, so he pushed me back on my shoulders from what I remember.
Okay. And you landed on your back on the ground?‑‑‑Mm hmm.
What did [the appellant] then do when you were on your back?‑‑‑Sorry, can you repeat the question?
What did [the appellant] do when you were on your back, on the ground?‑‑‑Well, I remember as he was charging towards me, he was sort of fiddling with his ‑ the tracksuit pants. And then he touched himself, his penis. And then he placed his penis in my vagina and raped me.
Okay. Now, when ‑ you described that [the appellant] touched his penis. Whereabouts was his body in relation to yours when you saw him first touch his penis?‑‑‑In front of me.
Okay. And was this when you were laying on the ground?‑‑‑Mm hmm.
Okay. Where were his hands, his ‑ where were his hands when he was touching his penis?‑‑‑I'm not sure.
Okay. Do you recall where your arms were at this time?‑‑‑They were down to the ‑ on my side.
Okay. What ‑ so you mentioned [the appellant] had tracksuit pants on?‑‑‑Mm hmm.
What did you have on your bottom half at this time?‑‑‑I don't remember clearly. But I'm assuming that it was shorts.
What happened to the clothing on your bottom half?‑‑‑I don't remember clearly. I think he took it off.
Were you wearing underwear?‑‑‑Yes.
And what happened to your underwear?‑‑‑I think he took it off.
Okay?‑‑‑But I don't remember that clearly.
Okay. What is the first thing that you do remember clearly?‑‑‑I remember him entering me, and it was very painful. And I [remembered] saying, 'No.' And he said to me, 'It won't hurt for long.'
Okay?‑‑‑And he continued.
When you say 'him entering you', what do you mean by that?‑‑‑His penis entered my vagina.
Okay. Do you know how long, or could you say how long his penis was inside your vagina?‑‑‑No, I can't.
Why not?‑‑‑Because I ‑ sorry.
It's okay. Take your time?‑‑‑I disassociated and just looked out the window to the left.
After identifying on a diagram which window she looked out of, TMS continued:[10]
So did [the appellant] eventually withdraw his penis?‑‑‑Yes, he did.
Okay. And what happened then?‑‑‑And then he said to me that, 'You've probably never seen a man ejaculate before.' And I ‑ so he encouraged me to watch him while he ejaculated into his hand.
Okay. What was he doing with his hands when he said that?‑‑‑He was masturbating.
Okay. And just be clear, was he ‑ what was he masturbating?‑‑‑His penis.
Okay. What happened after that?‑‑‑Then he looked like he was, sort of, attending to himself, and said I could go to the toilet. And so I got up and went to the toilet. And as I was walking across the room, he flippantly looked over his shoulder and said, 'Don't be surprised if there's any blood. It's normal.'
Okay?‑‑‑And then I went to the toilet.
[10] ts 123.
TMS said that, on going to the toilet, she saw blood on the toilet paper.[11] She then returned to the living room, where the appellant had remained. She gave the following evidence:[12]
Did he say anything to you about this incident that had just happened?‑‑‑He ‑ he told me that ‑ that we were now boyfriend and girlfriend.
So what was your relationship like with [the appellant] after this incident?‑‑‑Complicated.
Okay. Did he say anything to you ‑ ‑ ‑?‑‑‑He said ‑ ‑ ‑
‑ ‑ ‑ about your relationship?‑‑‑He said many things to me about that relationship. He told me that people wouldn't understand it. And that I wasn't to say anything to any of the others until I was 17, because they wouldn't understand. He told me that men should be able to have sex with females as soon as they have their period, and that it was acceptable in many cultures. And that love is love.
Okay. Did you say anything in response to him making those statements?‑‑‑The only thing I recall is him asking me if I agreed. And I didn't have a clue. So I just went, 'Yeah.'
[11] ts 124.
[12] ts 124 - 125.
This incident was the subject of count 1 in the indictment, a charge of rape contrary to the now repealed s 326 of the Criminal Code (WA) (Code).[13]
[13] BGAB 1.
On a later date within the same time period, TMS was in the kitchen of her house preparing dinner. The appellant approached and kissed her. TMS described this as a 'French kiss on the lips' and said it involved tongues. TMS said that she could recall this incident specifically because she had salt on her lips, and the appellant laughed and said, 'it was salty'.[14]
[14] ts 125 - 126.
This incident was the subject of count 2 on the indictment, a charge of unlawfully and indecently dealing with a child under the age of 14 years, contrary to s 183 of the Code.
Relevant trial evidence ‑ uncharged act (TMS)
TMS gave evidence of another incident involving the appellant (uncharged act). She said that this incident occurred after the Perth Royal Show and that she was still aged 13 at the time.[15] She said that after attending the Perth Royal Show, the appellant took her back to his grandmother's house. She described what occurred in the following terms:[16]
[15] ts 126.
[16] ts 127 - 129.
So after the Royal Show you went to [the appellant's] grandmother's house in Bassendean. What happened when you arrived at the house, sorry?‑‑‑He took me out to the back room and he said, 'Should we have sex?' I didn't want to. I shrugged my shoulders ‑ ‑ ‑
Okay?‑‑‑And then he laid me down on the bed and he had sex with me.
Okay. Do you recall what you were wearing on this day?‑‑‑No, I don't.
Do you recall what he was wearing?‑‑‑No, I don't.
Okay. What type of bed was in the bedroom?‑‑‑A single bed.
Okay. You mentioned you were laying ‑ you were laid down on the bed. Where was your body positioned on the bed?‑‑‑Underneath his.
Okay. And were you facing up?‑‑‑Yes.
Okay. And what direction was he facing?‑‑‑He was on top of me so he was facing down.
Okay. So would you say that you were facing each other?‑‑‑No, no.
Sorry, that was a bad question.
[DEFENCE COUNSEL]: Well, it was a question that was answered.
[PROSECUTOR]: I'll just get you to clarify ‑ ‑ ‑?‑‑‑I'd say ‑ I'd say that his face was to the side of mine. He was bigger than me. He couldn't face me.
Okay. So you mentioned he had sex with you?‑‑‑Yes.
How did that occur?‑‑‑He ‑ he spread my legs and then he put his penis in my vagina.
Okay. Were you wearing underwear at the time?‑‑‑I don't remember.
How long was his penis inside your vagina?‑‑‑I don't remember.
So how did this incident come to an end?‑‑‑I don't remember.
Okay. Do you recall if he ejaculated?‑‑‑I don't clearly remember. What I do remember is that he would withdraw [because] he would always withdraw. He was very concerned about not getting me pregnant.
Okay. Now, after this incident, eventually the sexual conduct ‑ contact with [the appellant] came to an end?‑‑‑Mm.
In cross‑examination, TMS said that there were other incidents of sexual contact between her and the appellant, but that she could not remember them. She recalled one incident where she was crying into her pillow thinking 'Oh, god, in my own bed as well'.[17] She said that she could not otherwise recall the details of that incident.
[17] ts 147.
Relevant trial evidence ‑ counts 3, 4, 7, 8, 9, 10, 11 and 14 (MLW)
In 1990, the appellant was in a relationship with the mother of MLW. The appellant and MLW's mother later got married. At the time that relationship started, MLW was aged 4 or 5 years old. She is one of seven siblings.[18]
[18] ts 188.
When MLW was in year 1 at school and aged 5, she recalled an incident when the appellant was putting the children to bed and offered her a chocolate to do something.[19] MLW described what occurred in the following terms:[20]
[19] ts 192.
[20] ts 192 - 194.
Now, do you recall how old you were when this first incident happened?‑‑‑I don't.
Okay. Do you remember what year of school you were in?‑‑‑I think year 1.
Okay. And you said you were all going to bed. There was your three brothers and yourself and you went into the back sleepout, is that right?‑‑‑Correct.
Okay. So what happened when you went into the back sleepout?‑‑‑The boys were still awake but they were in bed. He had ‑ if I did ‑ if ‑ he ‑ he asked if I wanted a chocolate, I said 'Yes'. He said if I wanted the chocolate I had to do something first and that was let him put his fingers in my vagina to a certain point up to his knuckles.
Yes?‑‑‑And then I would get a chocolate. And he asked me if he could do it and I said, 'Yes'.
Okay. So that thing you've just described about him asking you ‑ sorry, I'll say that again. What you've just described is that something that [the appellant] said to you?‑‑‑Yes.
And where were you when he said this?‑‑‑I was in bed.
And where was he?‑‑‑Standing next to the bed.
Okay. So after he asked you these questions what happened?‑‑‑I ‑ I ‑ he asked if he could do it and I said, 'Yes,' and he proceeded to do it.
Okay. So can you describe how that happened?‑‑‑Pulled ‑ pulling down my blankets. Lifting up my nightgown. I wasn't wearing any underwear. He was gentle. He went really, really slow. He proceeded to do one finger to start and then the second.
Okay. When ‑ so you mentioned you were in bed?‑‑‑Mm hmm.
What ‑ how was your body positioned?‑‑‑I was lying on my back.
Okay. And what were you ‑ how were your legs positioned?‑‑‑Spread apart.
Okay. Now, you mentioned first ‑ so I think you said 'First he did one finger'?‑‑‑Yes.
What did he do with the one finger?‑‑‑Inserted it into my vagina slowly.
Okay. And then what happened?‑‑‑And then he proceeded to put the second one in.
While this was happening did he say anything to you?‑‑‑He ‑ he said, 'It's nearly there'. Asked me to look, so he could see that I was ‑ that it was nearly there.
Okay. Did you look?‑‑‑I lifted my head up but not far enough for me to sit up and look, so ‑ ‑ ‑
So you ‑ your shoulders were still on the bed?‑‑‑Correct.
Yes. And what did you see when you looked?‑‑‑His fingers in my vagina only up to the knuckles.
Okay. Could you show us on your hand what knuckles you're describing?‑‑‑To there.
So the middle knuckle of your hand?‑‑‑Yes.
Okay. So what happened after he inserted two fingers?‑‑‑He told me that was it, that I was a good girl. And gave me a kiss on the lips, a ‑ a real quick peck, and then left and got me the chocolate.
Okay. Did he say anything to you whilst he had his fingers in your vagina?‑‑‑'Good girl. It's nearly there.'
This incident was the subject of count 3 on the indictment, a charge of unlawfully and indecently dealing with a child under the age of 13 years by the appellant penetrating MLW's vagina with his fingers contrary to s 189(3) of the Code.[21]
[21] BGAB 1.
MLW said that the next incident occurred on an occasion when the appellant got her out of bed and took her to the shops when it was dark. She gave the following evidence:[22]
[22] ts 195.
What happened next?‑‑‑We parked up at the shops and then he told me to take my seatbelt off and ‑ sorry.
That's okay, take your time. [MLW], do you want to have a short break?‑‑‑No.
Okay?‑‑‑He made me pull him off in the ‑ in the van.
Okay. I'll just start from the beginning. So where were you sitting in the van?‑‑‑In the passenger seat.
And where was he?‑‑‑In the driver's seat.
Okay. So he asked you to take your seatbelt off. What happened next?‑‑‑The next thing I recall was that his penis was out of his pants and he told me to start to go up and down with my hand on his penis.
Okay. Do you recall what clothing [the appellant] was wearing?‑‑‑No.
Do you recall what his penis looked like?‑‑‑I don't recall.
How did your hand come to be on his penis?‑‑‑He moved my hand over to his penis and guided me on what I should do and I did it.
So just to be clear what did you do?‑‑‑I went up and down with my hand on his penis until he ejaculated.
This incident is the subject of count 4 on the indictment, a charge of unlawfully and indecently dealing with a child under the age of 13 years by the appellant placing MLW's hand on his penis contrary to s 189(3) of the Code.[23]
[23] BGAB 1.
MLW said that the family moved to a different house when she was in year 3 and that she remembered things happening there, but it was blurred.[24] They then moved to another house when she was in year 4. No evidence was given in respect of counts 5 and 6 and the trial judge entered acquittals in respect of those counts.
[24] ts 197.
The next incident that MLW could recall was an occasion when she was sleeping in the bottom bunk of bunk beds. She was aged 7 or 8 years old. She said that the appellant came to her room naked. She gave the following account of what occurred:[25]
[25] ts 201 - 202.
What happened while you were on the bottom bunk?‑‑‑I was awoken to him going ‑ going down on me.
Okay. When you say that, what do you mean?‑‑‑He was licking my vagina.
On that occasion when he was licking your vagina, what was he wearing?‑‑‑Nothing.
Okay. Where was ‑ so you were on the bottom bunk, was it a single bed at the bottom?‑‑‑Yes.
Okay. Where was your body positioned ‑ ‑ ‑?‑‑‑I was ‑ ‑ ‑
‑ ‑ ‑ or how was your body positioned?‑‑‑I was lying on my back.
Okay. Can you describe how you came to ‑ sorry, how [the appellant] came to be licking your vagina?‑‑‑I just woke up, he was doing it.
So what did you see from where you were?‑‑‑I open my eyes and I see his face, his eyes, his whole head with his tongue going in and out of my vagina.
Okay. What did you do when you saw this?‑‑‑Nothing. It was just normal. I just lied there.
How long did this happen with his tongue going in and out of your vagina?‑‑‑I don't recall.
Did he say anything to you while this was happening?‑‑‑Not when that was happening. He ‑ he would ask if it was nice.
Did you respond to that?‑‑‑Yes.
What did you say?‑‑‑I said yes.
And how old were you when this specific incident happened?‑‑‑Five [sic].[26]
[26] BGAB 1 - 2; ts 379. MLW also referred to being in year 5 (ts 205), which would make her 10 years old. According to the dates on the indictment she was in fact between 7 and 8 years old at the time. That was the ultimate finding of the trial judge. No issue was taken with this either at the trial or on appeal.
This incident is the subject of count 7 on the indictment, a charge of sexually penetrating a child under the age of 13 years by engaging in cunnilingus contrary to s 320(2) of the Code.[27]
[27] BGAB 1.
MLW said that immediately after the incident subject of count 7, the appellant changed position. She described what then occurred in the following terms:[28]
What happened next?‑‑‑He stopped licking my vagina and spat on his fingers and wiped them over my vagina and then started rubbing his penis on my vagina.
Okay. So when he wiped his fingers on your vagina, can you describe where he wiped his fingers?‑‑‑Into my ‑ my vagina ‑ on the outside of my vagina.
And then you said he rubbed his penis?‑‑‑Yes.
Where did he rub his penis?‑‑‑He rubbed it up and down over and ‑ and around in ‑ in my vagina, but not inside, just on the outside.
Okay. Okay. And what happened after he did this?‑‑‑After that, he put it inside my vagina slowly.
Okay. What did he do with his penis when it was inside your vagina?‑‑‑He put it in and out of my vagina until he ejaculated.
Okay. Do you recall how long that went on for?‑‑‑It felt like forever. I don't know.
Did he say anything to you while he had his penis in your vagina?‑‑‑I ‑ he would whisper things in my ear, 'good girl, good girl'. If I would whimper, he would, 'shush, shh, shh, shh.
[28] ts 202 - 203.
This incident is the subject of counts 8 and 9 on the indictment. Count 8 is a charge of indecently dealing with a child under the age of 13 years by the appellant touching MLW'S vagina with his fingers contrary to s 320(4) of the Code. Count 9 is a charge of sexually penetrating a child under the age of 13 years by the appellant penetrating MLW's vagina with his penis contrary to s 320(2) of the Code.[29]
[29] BGAB 2.
The next incident occurred when MLW was aged 8, 9 or 10 years old. On this occasion, MLW woke up to find the appellant licking her vagina. She was lying on a bed in her bedroom at the time. She described the incident in the following terms:[30]
[30] ts 207 - 208.
And when you woke up, what did you see?‑‑‑Him looking up for my reaction. His eyes, with his tongue going in and out of my vagina.
Okay. When you saw this, what did you do?‑‑‑I just lied there. I think ‑ thought ‑ thought it was the same thing that was going to happen again so it was ‑ ‑ ‑
Do you remember what you were wearing at the time?‑‑‑I don't recall.
Okay. What was he wearing?‑‑‑Nothing.
While he was licking your vagina, did he say anything to you?‑‑‑Not while he was licking my vagina but he ‑ he stopped licking my vagina and describe the ‑ the feeling that ‑ that I liked ‑ he asked if I liked it ‑ ‑ ‑
Yes. Okay ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ just and then was ‑ sorry?
Did you respond to that?‑‑‑Yes.
What did you say?‑‑‑I said, 'Yes'.
And then what happened after that?‑‑‑He was explaining, 'That feeling is ‑ that's ‑ that's a pleasure feeling and that we both could get pleasure by doing the 69'.
Okay?‑‑‑For each other, like, doing it to each other.
Okay. Do you remember exactly what words he used?‑‑‑I don't recall.
Okay. So after you had that conversation, what happened next?‑‑‑He lied ‑ he lied down and I got over the top of him and ‑ ‑ ‑
Okay?‑‑‑ ‑ ‑ ‑ start ‑ sorry.
I'll just stop you there. You said he lied down?‑‑‑Yeah.
Where did he lie down?‑‑‑On my bed. He, like, moved everything and ‑ [because] pillows, blankets and just moved that around and lie down.
Okay. And then where did you go?‑‑‑He told me to climb over the top of him with my private area down his ‑ near his face and me down near his private areas.
Okay. So he was lying on the bed. Was he laying face‑up?‑‑‑He was lying on his back, face‑up, yeah.
Okay. And when you got into this position, what happened next?‑‑‑I started to ‑ I used my hands and started to go up and down on his penis with my hands and he was licking my vagina.
Okay. So did you use one hand or both hands?‑‑‑I used both hands.
Did anything else happen ‑ sorry, did you do anything else after using your hands?‑‑‑Well, he was talking at the same time, saying, like, 'Give it a lick', and you know, 'Do that and lick it, like, up and down and lick it', and then ‑ ‑ ‑
So what did you do?‑‑‑I was licking it and giving ‑ licking, kissing and going up and down with my hands, and ‑ ‑ ‑
And what was [the appellant] doing at this time?‑‑‑He was licking my vagina, like, poking his tongue in and out of it.
Okay. So how long did this go on for?‑‑‑I don't recall. It felt like a long time.
This incident is the subject of count 10 on the indictment, a charge of sexually penetrating a child under the age of 13 years by engaging in cunnilingus, contrary to s 320(2) of the Code; and, count 11 on the indictment, a charge of sexually penetrating a child under the age of 13 years by the appellant introducing his penis into her mouth, contrary to s 320(2) of the Code.[31]
[31] BGAB 2.
Count 12 was discontinued.[32] The complainant gave no evidence in respect of count 13 and an acquittal was entered in respect of that count.
[32] ts 170.
The next incident was the last occasion that MLW could recall where something sexual happened. It occurred in a house where the appellant was then living. The rest of the family was living in a house nearby. On this occasion the appellant was at MLW's mother's house. MLW was in year 7 at the time and aged 12 years old. MLW described what happened in the following terms:[33]
[33] ts 211 - 212.
You said he came in, so what happened?‑‑‑He came in and like just tried to take the blankets down and like spread my legs, but I literally just grabbed the blanket and just started moving and kicking and kicking ‑ like, kicking. And the bunk bed at that time was actually in the living room in ‑ in the [house], near the back sliding doors. Like it was being sold or something, I think. So it wasn't even in the bedroom, it was in the back living room.
Okay. So at that time, the bunk bed that was in your room, was actually in the living room?‑‑‑Mm hmm.
So this incident happened in the living room of the house?‑‑‑Yes.
Okay. And you mentioned that he ‑ [the appellant] came into the room and did something with your blanket, what did he do?‑‑‑Like, tried to pull them down.
Okay. And did he do anything else?‑‑‑Like, he definitely tried to get into, like my ‑ like my legs and kneel down and ‑ ‑ ‑
Can you ‑ can you describe how he did that?‑‑‑With his hands just like trying to ‑ like, put his hands like between my knees to try and ‑ just ‑ like, I can't recall right now. I ‑ I ‑ I remember just kicking and kicking and kicking [because] I didn't want it to happen anymore, so.
Yes. You said he put his hands on your leg, where did he put his hands?‑‑‑My knees.
And what did he do with his hands when they were on your knees?‑‑‑Tried to separate my knees.
Okay. And did any ‑ did he manage to do that?‑‑‑No. Nope.
That incident is the subject of count 14 on the indictment, a charge of indecently dealing with a child under the age of 13 years by the appellant touching MLW's knees with his hands, contrary to s 320(4) of the Code.
Defence case
The appellant did not give or adduce any evidence at the trial. His case, as presented by counsel, was that none of the sexual incidents had occurred.
Grounds of appeal
The grounds of appeal are as follows:[34]
1.The learned trial judge erred in law or fact or both, or alternatively a miscarriage of justice arose from directing the jury that evidence the subject of counts 1 and 2 were admissible against the remaining counts as propensity evidence [TS 333 ‑ 4].
2.The learned trial judge erred in law or fact or both, or alternatively a miscarriage of justice arose from directing the jury as to the use to be made of the evidence the subject of uncharged conduct of the Royal Show incident [TS 331 ‑ 2].
3.A miscarriage of justice arose from the prosecutor's submissions to the jury that the complainants had no reason to lie [TS 284].
[34] WAB 10.
Ground 1 ‑ position of the parties on the issue of propensity
Prior to the trial, the State sought a ruling that the evidence in respect of each complainant was cross‑admissible as propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA).[35] Counsel for the appellant wrote to the judge who heard the application to apologise for not being able to attend the hearing, but stated that it was accepted that the application was 'compelling' and that the 'defence do not seek to formally oppose or be heard on the application'.[36] The hearing was rescheduled so that defence counsel could attend. At the hearing, defence counsel confirmed that it was a 'very compelling' application and, without expressly conceding the application, did not seek to be heard in opposition to it.[37]
[35] ts 23.
[36] ts 23.
[37] ts 23.
MacLean DCJ granted the State's application permitting the evidence of each of the complainants to be used in respect of the charges relating to the other as propensity evidence.[38] His Honour was satisfied that the likely facts in issue were whether the offences occurred and, in respect of count 1, whether the conduct occurred without the consent of the complainant. His Honour was also satisfied that the evidence of TMS had significant probative value to the charges relating to MLW. His Honour said that the evidence of TMS had the capacity to affect, to a significant degree, the likelihood that the appellant had also committed similar offences against MLW. Whilst differences between the offences were acknowledged, it was said that these differences did not adversely affect the probative value of the evidence.[39]
[38] ts 25 - 26.
[39] ts 25 - 26.
In closing, the prosecutor stated:[40]
Now, the final point I want to make to you, ladies and gentlemen, is about the issue of cross‑admissibility. Now, I explained to you at the start of the trial that if you find [the appellant] guilty of one count beyond a reasonable doubt, then you can use the evidence from that count to inform your conclusions about the evidence on another count. I remind you, you cannot conclude that because he is guilty of one count, he is guilty of another. Her Honour will give you directions about those important rules before you go out to deliberate.
Now, it might seem complicated right now, but if you think about it, it kind of makes sense. These are two complainants, two independent people, who do not know each other. Both of them have different stories in different circumstances. Neither of them [has] a motive to lie about what happened to them. If you accept the evidence of either of the complainants beyond a reasonable doubt, then you can use that evidence to assist in your assessment of the evidence of the other complainant. I encourage you to listen carefully to her Honour's directions when she instructs you about that.
[40] ts 284.
After the closing addresses, the trial judge, Christian DCJ, noted that the propensity evidence ruling only referred to the evidence of TMS being used in respect of the counts relating to MLW and not vice versa.[41] Her Honour expressed concern that there was 'potentially a degree of circularity' in the evidence being used in both directions.[42] The prosecutor said that she had no difficulty with the jury being directed that they could only use the evidence of TMS as propensity evidence.
[41] ts 306 - 307.
[42] ts 307.
Ground 1 ‑ trial judge's directions on propensity evidence
The trial judge directed the jury in the following terms:[43]
[43] ts 333 - 334.
Now, I have previously directed you that you must look at the evidence on each charge or count to decide whether the specific act alleged in each charge has been proved beyond reasonable doubt. I need to give you a specific direction now as to the use that may and may not be made of the evidence of one charge when you are considering the evidence relating to another charge.
Now, [the prosecutor] for the State submitted to you that the finding of guilt on one or more of the charges relating to [TMS] establishes that [the appellant] had a sexual interest in female children in his family and it also establishes a propensity or tendency of [the appellant] to act on that interest by engaging in sexual behaviour when the opportunity arose.
A finding that [the appellant] is guilty on one or both of the charges relating to [TMS] may well establish a sexual interest or propensity or tendency, as the State has submitted, but that is a matter for you. There are some directions I need to give you about that.
First, if you find [the appellant] not guilty of a charge relating to [TMS], you cannot use that evidence you have heard about his conduct in that charge when you are considering any other charge. If you have found him not guilty, you must proceed on the basis that he's innocent of that charge. So evidence of a specific act on a charge where you have acquitted [the appellant] cannot be used by you when you are considering any other charge.
Secondly, if you are satisfied beyond reasonable doubt that [the appellant] is guilty of one or both of the charges relating to [TMS], the evidence in relation to that charge or those charges may be relevant to the charges relating to [MLW]. You are permitted to consider the evidence of any charge or the charges relating to [TMS] on which you find [the appellant] guilty, along with all the other evidence, to decide whether the State has proved any of the charges relating to [MLW] beyond reasonable doubt.
It would be open for you to conclude that the occurrence of an incident the subject of count 1 or 2 increases the likelihood that [the appellant] had committed a specific incident the subject of a charge relating to [MLW].
However, it is only open to you to come to that conclusion if you are satisfied the occurrence of the incident or incidents the subject of the charges in respect of [TMS] establishes that [the appellant] had a sexual interest in female children in his family and it also establishes a propensity or tendency of [the appellant] to act on that interest by engaging in sexual behaviour when circumstances permitted and that [the appellant] had this sexual interest and tendency at the time of the specific act which is the subject of the charge or charges relating to [MLW] that you are considering.
I need to give you some directions of law about how you cannot use the evidence of any charge on which you find [the appellant] guilty. You cannot use the evidence about any charge where you are satisfied beyond reasonable doubt that [the appellant] is guilty in substitution for the evidence of the events relating to any other charge. In other words, proof to your satisfaction of guilt upon one charge must not lead automatically to a guilty verdict on any other charge. You cannot say that because [the appellant] did one of the acts as charged, that therefore he must be guilty of what is alleged in any one or more of the other charges.
Ultimately, for each charge what you have to decide on the whole of the evidence is whether or not the State has established beyond reasonable doubt that [the appellant] committed the specific act as alleged in that charge. As I have previously directed you, this will turn on whether you are satisfied beyond reasonable doubt that the complainant's evidence in respect of the act in that charge is truthful, accurate and reliable. You cannot convict [the appellant] on any charge unless the State has satisfied you beyond reasonable doubt that he has committed the specific act alleged against him in that charge.
Ground 1 ‑ appellant's submissions
The appellant submits that the evidence in relation to counts 1 and 2 was incapable of establishing that the appellant had a sexual interest in children in his family, because there was no evidence that the appellant was attracted to TMS due to her being a family member.[44]
[44] WAB 18.
The appellant further submits that there were insufficient common features between each set of offending for the evidence of TMS to be used as propensity evidence.[45] The appellant says that it is not enough to show that the offences against TMS and MLW involved offending of the same general type. The appellant says that the manner in which each relationship developed, the type of relationships, the respective ages of the complainants and their stages of puberty, the age gaps between the appellant and the two complainants, and the manner of the offending in each case, are so different from each other that the evidence of TMS could not meet the bar of possessing significant probative value.[46] The appellant says that 'a 21‑year‑old having a sexual attraction to a teenage step‑cousin [is] very different to a stepfather being attracted to a prepubescent child as young as six'.[47]
[45] WAB 20.
[46] WAB 21.
[47] Appeal ts 3.
The appellant further submits that the offending against TMS commenced as sudden and forcible rape, whereas the offending against MLW involved grooming before penile‑vaginal penetration occurred.[48] Tongue kissing that was present in respect of the offending against TMS was absent in respect of the offending against MLW. Insofar as there was some element of grooming TMS by conducting martial arts lessons and telling her that they were in a relationship, the appellant says that this was different in character to the grooming of MLW. The appellant says that discussions with TMS were focussed on the appellant's pleasure, whereas with MLW the appellant was concerned about mutual sexual enjoyment.[49]
[48] WAB 20.
[49] Appeal ts 7.
Counsel for the appellant accepted that this ground, if successful, could only affect the convictions relating to the MLW charges. That is, it could not affect the convictions on counts 1 and 2.[50] Counsel suggested that there was also a risk that the jury might also have used MLW's evidence as propensity evidence in respect of counts 1 and 2, given that that possibility had been adverted to by the prosecutor in her opening and closing addresses and was not expressly corrected by the trial judge. However, there was no application to amend ground 1 to encompass this possibility.
[50] Appeal ts 8 - 9.
Ground 1 ‑ respondent's submissions
The respondent submits that, if accepted, the evidence of TMS was capable of supporting an inference that the appellant had a tendency to engage in sexual behaviour with a female child with whom the appellant had a familial (but not biological) relationship. The evidence possessed significant probative value because proof of the appellant's sexual interest in TMS made it more likely that he would engage in sexual activity with MLW.[51]
[51] WAB 52.
The respondent submits that the identification of similarities and differences between the two sets of offending is unhelpful. The task must be to identify whether the disputed evidence of TMS could, if accepted, logically and rationally assist the jury in its assessment of the truth of MLW's allegations.
Moreover, the respondent submits that the differences identified by the appellant need to be viewed in context. The respondent makes the following observations:[52]
1.While the offending against TMS occurred when she was aged 13 and the offending against MLW commenced when she was aged 5, the latter offending continued until MLW was aged 12.
2.While the offending against MLW involved more charged incidents and a greater variety of sexual behaviour, this offending occurred in the appellant's home, where the appellant had more frequent access to MLW.
3.While the offending against TMS was limited to two incidents, she gave evidence that the two incidents occurred in the context of additional ongoing sexual contact between her and the appellant, but that she could not recall the specific details (except in regard to the Royal Show incident).
4.While the appellant engaged in more obvious grooming behaviour with MLW, for example, the offer of chocolates in exchange for sexual contact, this can be explained by her younger age. Furthermore, the offending against TMS could be viewed as involving grooming behaviour of a different type, for example, the offering of martial arts lessons and later references to them being in a relationship.
[52] WAB 53.
The respondent says that there were also aspects of the appellant's offending that shared common features.[53] For example, both complainants described ongoing sexual conduct occurring within an ostensibly familial relationship. Further, the offending against both complainants involved penile penetration, and both involved the appellant giving the complainants instructions as to what was to be expected from the sexual encounters.
[53] WAB 54.
Ground 1 ‑ relevant legal principles
Section 31A of the Evidence Act provides:
(1)In this section ‑
propensity evidence means ‑
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers ‑
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
The principles relevant to whether propensity evidence has significant probative value were summarised by Beech J in RMD v The State of Western Australia:[54]
[54] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185], [181] (Mazza JA agreeing).
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(2)In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
(3)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue.
(4)The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.
(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.
(6)If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
(8)The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value.
(citations omitted)
In the State of Western Australia v Jackson,[55] the following further points were made:[56]
First, the term 'propensity evidence', as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence … of a tendency that the accused person has or had'. The word 'conduct', in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a) the evidence is capable of proving the propensity; and
(b)proof of the propensity increases the likelihood of the commission of the offences.
Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'. For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.
Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value. (citations omitted)
[55] The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285.
[56] Jackson [20] ‑ [23].
In R v Bauer (a pseudonym),[57] the High Court said:
In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true. (citation omitted)
[57] R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56 [58] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
In KHA v The State of Western Australia,[58] this court summarised the law in this area and reiterated that, where an accused is charged with sexual offences against multiple complainants, proof of sexual conduct against one complainant will generally only have significant probative value in respect of a charge against another complainant if there is some feature of or about the sexual conduct which links it with the charged offence. It is the existence of a 'common feature' that has the capacity to demonstrate a tendency to act in a particular way.[59]
[58] KHA v The State of Western Australia [2022] WASCA 173; (2022) 305 A Crim R 265.
[59] KHA [30] (Buss P, Mazza & Mitchell JJA).
Ground 1 ‑ disposition
The fact that the appellant's trial counsel made no objection to the use of the evidence of TMS for propensity purposes, and indeed expressly conceded that it could be so used, is not fatal to this ground of appeal. Whilst the decisions of counsel will often provide the context in which a trial judge makes a decision on a question of law, whether the conduct of counsel caused or contributed to the decision is irrelevant to whether there is a wrong decision on a question of law. The trial judge has a responsibility to 'be astute to secure for the accused a fair trial according to law' and this extends to 'an adequate direction ... as to the law'.[60]
[60] MDP v The King [2025] HCA 24 [109] (Gleeson, Jagot & Beech‑Jones JJ).
In the present case, the critical question is whether the trial judge erred by directing the jury that the evidence relating to counts 1 and 2 was admissible in relation to the other counts as propensity evidence. That direction has to be seen in the context that another judge had ruled that the evidence was admissible for that purpose. However, that ruling did not relieve the trial judge of the obligation to consider whether the direction was appropriate. That question depends on whether the evidence of TMS established the existence of a tendency, and was significantly probative in relation to the counts relating to MLW, for the purpose of s 31A of the Evidence Act.
In this case, the evidence was relied on by the prosecution to show that the appellant had a tendency to engage in sexual behaviour with a female child with whom the appellant had a familial (but not biological) relationship when the opportunity arose. The fact that the appellant had engaged in sexual conduct with TMS, a female child of 13 years old at the relevant time, was said to make it more likely that he had engaged in sexual conduct with MLW, a female child aged between 5 and 12 years old at the relevant time.
The appellant has sought to rely on differences between the conduct as reducing the probative value of the evidence. The appellant points to: the difference in ages of TMS and MLW; the use of force in respect of TMS but not MLW; and the variety of sexual acts committed in respect of MLW, as opposed to TMS. The appellant also notes the five‑year gap in time between the offending in relation to TMS and the commencement of the offending in relation to MLW.
Whilst differences between the conduct cannot be ignored, the pertinent question is whether there is any link or common features which demonstrates that the appellant had a tendency to act in a particular way. It is also important to emphasise that, in assessing the probative value of the evidence, the evidence must be viewed at its strongest from the perspective of the prosecution.
As regards the existence of common features, the following factors are relevant:
(a)Both complainants were female children, with whom the appellant had a familial but not biological relationship.
(b)The offending against TMS occurred when she was aged 13. The offending against MLW occurred when she was between the ages of 5 and 12 years old. MLW was only one year younger than TMS when the offending against her ceased. Furthermore, that offending only ceased because MLW began to resist. Seen from this perspective, the difference in age of the complainants is not as significant as the appellant suggests.
(c)The sexual conduct in respect of both complainants involved an element of trust to obtain access to, and physical contact with, the complainants in the absence of other people.
(d)It is too simplistic to say that the offending against TMS involved the use of force, whereas the offending against MLW was merely emotionally coercive. Both sets of offending involved an element of manipulation. The appellant told TMS that they were now boyfriend and girlfriend and that she should not be worried. MLW was offered chocolate and repeatedly told that she was a good girl. In both cases, the appellant sought to take advantage of the relative innocence of the complainants, normalise the conduct, and allay any concerns that the complainants might understandably have felt.
(e)Both complainants were subjected to penile/vaginal penetration.
(f)In both cases, the sexual conduct continued over a period of time and involved multiple incidents.
The appellant submitted that the offending in respect of TMS could only establish that the appellant had an interest in post‑pubertal girls. He made a statement to this effect to his sister, who gave evidence that when confronted, the appellant had sought to justify his conduct in regard to TMS by saying that she was physically well‑developed.[61] However, counsel for the appellant accepted that there was no other evidence as to TMS's physical development or appearance at the time and that TMS was not cross‑examined about it.[62] The appellant's statement to his sister was an entirely self‑serving explanation that the jury were entitled to reject.
[61] Appeal ts 5.
[62] Appeal ts 5.
In our view, the evidence of TMS was capable of establishing that the appellant had a tendency to engage in sexual behaviour with a female child with whom the appellant had a familial, but not biological relationship. The evidence showed that the appellant had a sexual interest in female child relatives and that he was prepared to act upon that interest when an opportunity arose. The common features between the offending against TMS and that against MLW referred to at [58] of these reasons, were sufficient to show that the offending was linked by that tendency and that the evidence of TMS had significant probative value in relation to the charges relating to MLW. The fact that the appellant had engaged in sexual conduct with TMS in the manner that he did, made it more likely that he had also engaged in sexual conduct with MLW. The evidence of TMS was admissible as propensity evidence in respect of the counts relating to MLW.
In those circumstances, there was no error in the trial judge's directions as to propensity, and no possible miscarriage of justice arising from those directions. Ground 1 fails.
Ground 2 ‑ prosecutor's closing address to the jury
The prosecutor explained the relevance of the Royal Show incident evidence in her closing address:[63]
You will recall that the evidence about the Royal Show is not evidence which relates to a count on the indictment. But it's led by the State because it is relevant to your evaluation of the other prosecution evidence. It explains that the incidents the subject of the indictment are not out‑of‑the‑blue isolated incidents.
It places the offending in its true context and explains why, in some instances, [TMS] may not be able to provide details of other specific incidents, because the sexual behaviour occurred on more than one occasion.
[63] ts 278.
Ground 2 ‑ trial judge's directions on uncharged acts
The trial judge directed the jury as to the Royal Show incident (and other acts of a similar type) in the following terms:[64]
Dealing first with what [TMS] said, you may recall she gave evidence about one specific incident after the Royal Show where [the appellant] had sex with her at his grandmother's house in Bassendean. She also said there were other incidents of sexual interaction, but she doesn't recall them. I will refer to that evidence as other conduct.
I'm now going to give you an important direction as to how you may use the other conduct evidence relating to [TMS] and how you must not use that evidence. First, I will direct you as to how you may use that evidence. Secondly, I will direct you as to how you must not use that evidence.
[The appellant] has not been charged with any offence in relation to any other conduct evidence relating to [TMS]. The State was permitted to lead the other conduct evidence relating to [TMS] because, if you accept her evidence that there were other instances of sexual interaction, it may assist your assessment of [TMS's] evidence. And that you may find it explains that the incidents, the subjects of counts 1 and 2, are not out of the blue instances.
And it may explain why [TMS] may not be able to provide details of other specific incidents because the sexual behaviour occurred on more than one occasion. Those are matters for you to consider. But you may only use the other conduct evidence relating to [TMS] in the way I have just directed.
I will now direct you as [to] how you must not use the other conduct evidence relating to [TMS] if you accept the other evidence. You must not take that evidence into account in deciding whether the State has proved beyond reasonable doubt that [the appellant] has committed the charged offences in the indictment.
You must not use that evidence as proof in any way of the charges in the indictment. You must not use that evidence in substitution in any way for direct evidence of the charges in the indictment. You must not use that evidence to fill in any gaps, if you think there are any gaps, and you must not use that evidence to reason that [the appellant] was the kind of person who may be likely to commit the charged offences in the indictment. (emphasis added)
[64] ts 331 - 332.
Ground 2 ‑ appellant's submissions
The appellant submits that the trial judge erred by telling the jury that the uncharged act evidence could explain that counts 1 and 2 were not 'out of the blue' incidents.[65] The Royal Show incident was later in time, at least to the first incident that was the subject of count 1. The appellant says that a later incident cannot change the circumstances that gave rise to an earlier incident so as to make it not 'out of the blue'. Indeed, TMS accepted in cross‑examination that the first incident was 'out of the blue.' The appellant suggests that the trial judge's directions were liable to mislead the jury into thinking that the appellant had shown some sexual interest in TMS prior to the first incident.[66]
[65] WAB 23.
[66] WAB 23.
The appellant also submits that the occurrence of uncharged acts could not be used to explain an inability to recall details of the charged acts.[67] TMS did give a detailed account of the incident the subject of count 1. A suggestion that another incident (the Royal Show incident) some months later could interfere with her recollection of the first incident, was not founded on the evidence.
[67] WAB 23.
The appellant relies on JEL v The State of Western Australia,[68] in which a direction was given to the jury regarding uncharged acts which were committed later in time to the charged conduct. The direction in JEL was found to have failed to adequately explain to the jury how the evidence could be used.
[68] JEL v The State of Western Australia [2022] WASCA 32; (2022) 58 WAR 295.
Ground 2 ‑ respondent's submissions
The respondent submits that, though the first incident might be described as 'out of the blue', it was not isolated.[69] The Royal Show incident evidence was led to provide important context to TMS's allegations of sexual offending. In particular, the evidence showed that the two incidents that TMS could recall in detail did not reflect the entirety of the sexual abuse and the ongoing sexual contact between her and the appellant. The Royal Show incident evidence showed that counts 1 and 2 were not standalone, isolated incidents.[70]
[69] WAB 55.
[70] WAB 56.
The respondent submits that there was no real risk that the jury would have used the uncharged acts evidence impermissibly to speculate that count 1 may not have been the first occasion of sexual offending against TMS.[71] Indeed, the fact that TMS herself accepted that count 1 was 'out of the blue' obviated any such risk. TMS was firm in her recollection that count 1 was the first instance of offending against her. Thus, the purpose for which the Royal Show incident evidence was led was consistent with the permissible uses outlined by this court in LNV v The State of Western Australia.[72]
[71] WAB 56.
[72] LNV v The State of Western Australia [2019] WASCA 180 [66] (Buss P & Sofronoff AJA).
The respondent submits that TMS was robustly cross‑examined on her inability to remember other sexual contact, which she maintained had occurred but could not recall in any detail.[73] The trial judge's directions were consistent with TMS's evidence that sexual conduct had occurred on more occasions, which potentially explained her inability to recall details of instances other than those charged. This was important to explain why her account only resulted in two formal charges and to show that counts 1 and 2 were not isolated occurrences.
[73] WAB 56.
Ground 2 ‑ disposition
Evidence of uncharged discreditable acts is frequently led in trials of sexual offences. Such evidence may be led for a number of purposes, including:[74]
(a)to place the offending into its true context and thereby remove the potential implausibility of an allegation of an isolated incident;
(b)to prove that the accused had a sexual attraction for the complainant, or people like the complainant, so as to show a motive to commit the offence;
(c)to demonstrate that the accused was a person who was prepared to act on his urges to commit the charged offence because he had actually committed similar offences against the complainant or others previously; and
(d)to explain any delay or failure by the complainant to complain.
[74] LNV [66] (Buss P & Sofronoff AJA).
In the present case, it is not contended that the evidence of the Royal Show incident was inadmissible. It is accepted that the evidence was admissible as evidence to show the true context in which counts 1 and 2 occurred, and to remove any implausibility that might arise if those incidents were considered isolated in nature. Rather, the complaint is that the trial judge misdirected the jury on how the evidence could be used.
The appellant places emphasis on the use of the phrase 'not out of the blue' in the directions as impliedly suggesting that count 1 may not have been the first occasion of sexual offending. In assessing whether this had any real potential to mislead the jury, it is important to understand the context in which the phrase was used at the trial. First, the evidence of TMS was clear that count 1 was the first occasion where any sexual contact was made by the appellant, and that it had occurred 'out of the blue', in the sense that TMS was caught by surprise. Secondly, the prosecutor in closing referred to counts 1 and 2 as not being 'out of the blue isolated incidents' (emphasis added). Thirdly, seen in this light, the reference in the directions was to counts 1 and 2 not being isolated incidents; that is, the context of other uncharged acts could remove any implausibility that might otherwise be thought to arise.
The complaint that the uncharged acts evidence could not be used to explain why TMS may only be able to recall a few incidents in any detail, must be assessed having regard to the fact that TMS was cross‑examined as to the reliability of her memory of the events. In considering why TMS might recall some things in detail but not others, it was relevant to take into account that she said that the conduct had involved other acts.
JEL is not an analogous case. In JEL, the prosecution led evidence of two uncharged incidents but failed to make it clear what purpose that evidence served. It was not part of the State case there that the uncharged acts demonstrated that the appellant had a sexual interest in the complainant, and that a direction to the contrary was therefore in error. The directions also invited propensity reasoning, when that was not an available use of the evidence.
In the present case, there is no dispute that the Royal Show incident evidence was admissible as context evidence. The issue is confined to whether the jury were misled by the trial judge as to what that context was. When the directions of the trial judge are considered as a whole, in the context of the trial, there is no perceptible risk that the jury were misled. Ground 2 fails.
Ground 3 ‑ prosecutor's closing address to the jury
In closing, the prosecutor said:[75]
Now, it might seem complicated right now, but if you think about it, it kind of makes sense. These are two complainants, two independent people, who do not know each other. Both of them have different stories in different circumstances. Neither of them have a motive to lie about what happened to them. (emphasis added)
[75] ts 284.
Ground 3 ‑ trial judge's directions on motive to lie
The trial judge gave the following directions to the jury:[76]
Now, another direction I'm going to give you is in relation to motive to lie. You are entitled to consider whether the evidence has thrown up anything which might indicate that either [TMS] or [MLW] had some motive for making a false complaint or giving false evidence. For example, it was suggested that [MLW] was pressured by her mother to make allegations against [the appellant] back in 2001.
The possible presence of something of that kind has of course, as a matter of common sense, the potential to cast doubt on the reliability of a complainant's evidence. However, you must remember at all times that the onus rests with the prosecution, and that the standard of proof is beyond reasonable doubt. There is therefore no onus on [the appellant] to point to any such motive or to establish any motive.
While the existence or possible existence of a motive is something that is potentially relevant, the apparent absence of one is irrelevant and cannot be taken as something which strengthens the prosecution's submission that [TMS] and [MLW's] evidence was truthful. If you reject the motive to lie put forward on behalf of the defence in respect of [MLW], that does not mean that [MLW] is telling the truth.
In her closing address, [the prosecutor] said something about there being no reason for [TMS] to come to court and lie about these things having occurred. She also said that neither of the complainants have a motive to lie about what happened to them.
As I have just told you, the absence of a motive to lie cannot be taken as something which strengthens the prosecution's submission that [TMS] and [MLW's] evidence was truthful. Therefore, [the prosecutor] should not have made any comments that might be taken by you to suggest there was any onus on [the appellant] to prove either complainant had a motive to lie. I'm not suggesting that is what she intended by her comments.
She was of course entitled to suggest that you should reject any motive to lie suggested by defence counsel. I remind you again that the accused person is not required to prove anything in a criminal trial and there is no onus of any kind on him to prove that either [TMS] or [MLW] had a motive to lie.
[76] ts 330 - 331.
Ground 3 ‑ appellant's submissions
The appellant submits that the danger of suggesting to the jury that the complainants did not have a motive to lie was that it had the effect of reversing the onus of proof.[77] The comment made by the prosecutor in closing address unfairly suggested that there was an onus on the appellant to identify a motive to lie in order to establish he was not guilty. It also implied that, in the absence of a reason to lie, the complainants' evidence should be accepted.[78]
[77] WAB 24.
[78] WAB 24.
The appellant accepts that the direction given by the trial judge correctly directed the jury as to the significance of the motive to lie and that the onus of proof remained on the prosecution. However, the appellant submits that the damage caused by the prosecutor had already occurred and could not be undone.[79]
[79] WAB 24.
Ground 3 ‑ respondent's submissions
The respondent submits that the brief comment by the prosecutor in her closing address was made to rebut the suggestion put to MLW during cross‑examination, that she had a motive to lie.[80] It is permissible for defence counsel to seek to establish in cross‑examination that a complainant has a motive to lie. However, where this occurs, it is open to the prosecutor to rebut that suggestion, provided that the prosecutor does not suggest that there is an obligation on the accused to establish a motive, or invite the jury to believe the complainant's evidence unless such a motive is established.[81]
[80] WAB 57.
[81] MNA v The State of Western Australia [2020] WASCA 84 [44] (Buss P & Mitchell JA); CB v The State of Western Australia [2006] WASCA 227; (2006) 175 A Crim R 304 [130] (Roberts‑Smith JA; Martin CJ & Pullin JA agreeing).
In any event, the respondent submits that no risk of a miscarriage of justice arose because the trial judge gave clear directions setting out the correct legal position in relation to the issue of motive to lie.[82] Her Honour expressly referenced the prosecutor's comment, and correctly directed the jury in orthodox terms as to the onus of proof.
[82] WAB 58.
Ground 3 ‑ disposition
In Palmer v The Queen,[83] the High Court held that it is impermissible for a prosecutor to ask an accused person in cross‑examination whether they know of any reason why the complainant would lie. To ask such a question invites a process of reasoning that undermines the onus of proof and deflects the jury from its fundamental task. The issue is not confined to cross‑examination and may also arise in the context of the prosecutor's closing address.[84] The danger of a miscarriage of justice may be avoided if firm and clear directions are given to avoid any inappropriate course of reasoning.
[83] Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1.
[84] Harman v The State of Western Australia [2004] WASCA 230; (2004) 29 WAR 380 [66] (Steytler J).
The principle does not preclude a prosecutor from seeking to rebut the existence of a motive to lie or to reduce its influence, so long as the cross‑examination or argument does not go beyond that.[85] Where defence counsel raises the issue of a complainant having a possible motive to lie, there is nothing improper in the prosecutor attempting to counter such suggestions and to submit that the complainant did not have any such motive. What the prosecutor must not do is suggest that the accused bears any onus to show that the complainant had a reason for not telling the truth, or that the absence of any proved reason strengthens the suggestion that the complainant must be telling the truth.[86]
[85] CB [130].
[86] R v T [1999] QCA 376 [13] ‑ [14] (Thomas JA).
In the present case, defence counsel put to MLW in cross‑examination that her mother had put pressure on her to proceed with the allegations. The tenor of that cross‑examination was that MLW had no real memory of what had occurred and had made the allegations only to appease her mother. In these circumstances, it was open to the prosecutor to rebut that suggestion in closing submissions.
The comment by the prosecutor was brief and apparently made to rebut the suggestion that there was any motive on the part of the complainants to lie. In fact, that suggestion had only been made by defence counsel in respect of MLW. The defence position in respect of TMS was that her evidence should not be accepted because her memory was unreliable. To this extent, the comment by the prosecutor went beyond what was appropriate. However, the prosecutor did not suggest that the appellant bore an onus of proving a motive to lie on the part of the complainants, nor that the absence of any proven motive enhanced the credibility of the complainants.
In any event, any risk that the jury may have been improperly affected by the prosecutor's comment was removed by the clear directions given by the trial judge. Her Honour correctly directed the jury that the prosecution bore the onus of proof and, specifically, that the appellant bore no onus of proving that the complainants had motives to lie. Her Honour also referred to the prosecutor's comment and expressly dispelled any impression that might have arisen from the comment that the appellant bore any onus in respect of proving a motive to lie. No issue was taken by defence counsel with the adequacy of that direction.
Having regard to the conduct of the trial, the nature of the prosecutor's comment and the trial judge's directions, there is no perceptible risk that the jury could have proceeded on a misunderstanding that the appellant bore an onus to prove that the complainants had motives to lie, or that their credibility was enhanced by the failure of the appellant to establish such a motive. Ground 3 fails.
Conclusion
For these reasons, we would allow an extension of time to appeal, grant leave to appeal in respect of each of the grounds, but dismiss the appeal.
Orders
We would make the following orders:
1.Extension of time to appeal is allowed.
2.Leave to appeal on grounds 1, 2 and 3 is granted.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MO
Associate to the Honourable Justice Hall
24 JULY 2025
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