LQZ v The State of Western Australia

[2025] WASCA 27

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   LQZ -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 27

CORAM:   MAZZA JA

VAUGHAN JA

VANDONGEN JA

HEARD:   10 NOVEMBER 2023 & 14 JUNE 2024

FURTHER SUBMISSIONS ON 20 & 30 DECEMBER 2024

DELIVERED          :   25 FEBRUARY 2025

FILE NO/S:   CACR 15 of 2023

BETWEEN:   LQZ

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   MIOCEVICH DCJ

File Number            :   IND XXXX of XXXX

Catchwords:

Criminal law - Appeal against conviction - Child sexual offences - Tendency and propensity evidence - Whether trial judge's directions as to cross‑admissibility invited jury to engage in improper or impermissible propensity reasoning - Whether trial judge's reformulation of alleged propensity after counsel's closing addresses resulted in an unfair trial and occasioned a miscarriage of justice - Whether evidence of uncharged acts wrongly admitted

Legislation:

Criminal Code (WA), s 320(2), s 320(4)
Evidence Act 1906 (WA), s 31A

Result:

Leave to appeal allowed on ground 1 of substituted appellant's case
Leave to appeal refused on grounds 2 and 3 of substituted appellant's case
Appeal allowed
Judgments of conviction on counts 3 - 10 set aside
Retrial ordered

Category:    B

Representation:

Counsel:

Appellant	:	S A Auburn
Respondent	:	L M Fox SC (14 June 2024) & R G Wilson (10 November 2023)

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Coomer v The State of Western Australia [2024] WASCA 133

De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57

Director of Public Prosecutions (Vic) v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644

Falkiner v The Queen [2019] SASCFC 118

Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351

LBH v The State of Western Australia [No 2] [2023] WASCA 99

Le-Ta v The State of Western Australia [2020] WASCA 14

McCosker v The Queen [2023] NSWCCA 131

Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119

Nuhana v The State of Western Australia [2018] WASCA 79

PRS v The State of Western Australia [2023] WASCA 106

R v Christie [1914] AC 545

R v Dickman [2017] HCA 24; (2017) 261 CLR 601

R v Hards [2018] SASCFC 132

R v Nelson [2004] NSWCCA 231; (2004) 41 MVR 10

R v S, DD [2010] SASCFC 80; (2010) 109 SASR 46

R v Taouk [2005] NSWCCA 155; (2005) 154 A Crim R 69

RKT v The State of Western Australia [2017] WASCA 13

RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67

Roberts v The State of Western Australia [2019] WASCA 83

Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88

The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

MAZZA & VAUGHAN JJA:

Overview

1. The appellant stood trial from 15 to 24 November 2022 in the District Court at Perth in relation to 10 sexual offences against four children aged between 7 and 12 years.  The appellant was acquitted of the offences alleged in counts 1 and 2.  With one exception the appellant was convicted of the remaining offences following unanimous verdicts of the jury.  The exception was in relation to the offending the subject of count 8.  There, the appellant was convicted of the alternative offence of indecently dealing with a child under the age of 13.

2. The various counts, and the facts of the alleged offending, are referred to in detail in Vandongen JA's reasons.

3. The appellant appealed against his convictions.  The appeal has an unfortunate history.  It will be necessary to recount the history of the appeal to appreciate the eventual basis on which the appeal was advanced.  In substance, however, by ground 1 the appellant complained that the trial judge invited the jury to engage in improper or impermissible propensity reasoning.  By ground 2 the appellant complained about the admission of other conduct evidence.  Originally, the appellant relied on a third ground of appeal.  However, during the course of the hearing, counsel for the appellant informed the court that ground 3 was a particular of ground 2.  In light of this, ground 3 does not require separate consideration from ground 2.

4. For the reasons that follow there should be leave to appeal on ground 1 and the appeal should be allowed.  The convictions must be set aside and the appellant must be retried.

Background

1. Vandongen JA has summarised the State's case and the appellant's case at trial.  We will only repeat those matters where necessary to explain our conclusion on the appeal.  Relevantly, however, the appellant had an interest in massage and gave massages to family and friends.  The appellant was charged with touching four children in a sexual way.  Most, but not all, of the alleged offending occurred under the guise of giving a massage.  The State also relied on other conduct evidence.  It is not necessary to detail that other conduct evidence.

2. In relation to the offending:

   1.Counts 1, 2 and 3 concerned P. The appellant was convicted of count 3 but acquitted of counts 1 and 2. Count 3 did not involve a massage. The appellant was driving P, when P was 10 years old. P sat in the front passenger seat. While driving the appellant started touching P on P's thigh. The appellant's hand moved higher, reaching P's inner thigh, where the appellant rubbed up and down. The appellant then moved his hand to touch P's vagina over P's clothing (ts 161 - 162). The appellant was charged and convicted of an offence of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (Code).

   2.Counts 4 and 5 concerned M. Count 4 was a charge of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code; count 5 was a charge of sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Code. The appellant was convicted of both counts. M was around 11 years old. Count 4 concerned the appellant touching M's vaginal area in the course of a massage. In terms of timing, count 5 immediately followed count 4; after M got up to get some food. The appellant said that he could continue to massage M around the food she intended to eat. This time, however, the appellant rubbed around M's clitoris, under her underwear, moving his fingers to her vagina and running his fingers up and down her vagina (ts 162 - 164).

   3.Counts 6, 7 and 8 concerned R. The appellant was charged with two counts of indecently dealing with a child under the age of 13 contrary to s 320(4) of the Code (counts 6 and 7) and one count of sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Code (count 8). R was about 8 years old at the time. The appellant was convicted of the offending the subject of counts 6 and 7. However, as mentioned, on count 8 the appellant was convicted of the alternate offence of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code. The offending occurred during two incidents while the appellant was massaging R (the first incident was the subject of count 6 and the second incident was the subject of counts 7 and 8) (ts 164 - 165).

   4.Counts 9 and 10 concerned S. S was about 7 years old and has autism. Both counts alleged that the appellant sexually penetrated S, a child under 13 years of age, contrary to s 320(2) of the Code. The offending the subject of count 9 was alleged to have occurred during a massage. The appellant was said to have penetrated S's vagina with his finger. Separately, on or about 22 June 2019, the appellant was alleged to have sexually penetrated S by performing cunnilingus on her - the appellant 'kissed' or 'licked' S on her vagina (ts 167 - 169).

3. Accordingly, counts 4 and 5 (in relation to M), 6 - 8 (in relation to R) and 9 (in relation to S) were alleged to have occurred in the course of the appellant massaging the relevant complainant.  So too were counts 1 and 2 (in relation to P), although these were counts in respect of which not guilty verdicts were returned.  Counts 3 and 10 were not alleged to have occurred in the course of a massage.

4. It was part of the State's case at trial that evidence in relation to the offending on one count could be used in relation to the other counts.  This was put in two ways.  First, as between counts concerning the same complainant (ts 180 - 182).  This use, and the trial judge's directions as to that use, are not complained of on appeal.  Little more needs to be said of this part of the State's case.  The second use that was contended for was put as follows by the prosecutor in opening the State's case:

   Now, the second way you can take into account the evidence of one charge when looking at another is across different complainants and it works like this.

   If you were satisfied beyond a reasonable doubt in relation to a count or counts for a particular complainant and as a result of that make a finding that [the appellant] has a sexual interest in young girls between the ages of seven to 12 years old who are not related to him and that he was willing to act on that sexual interest in circumstances where he had access to those children at family homes and in particular during massages including massages done in communal areas of the home whilst others were present then you can use that finding in considering the other counts in relation to other complainants.

   In other words, if you are satisfied beyond a reasonable doubt of one of the counts in relation to a particular complainant, you may find it's more likely that he also did the other acts alleged by the other complainants.  (ts 181) (emphasis added)

5. The prosecutor then proceeded to give an example based on the jury having found that the appellant had committed one of the charges in relation to P (ts 181 - 182).

6. This aspect of the State's case was opened conformably with a pre-trial application made by the prosecutor pursuant to s 31A of the Evidence Act 1906 (WA). Vandongen JA refers to the terms of an email dated 7 November 2022 by which the prosecutor informed the court and the appellant's then defence counsel of the basis on which the State invoked s 31A. The prosecutor's email was in response to an email from the trial judge's associate in which the State was asked to identify, in relation to the s 31A application, the propensity sought to be proved by a conviction on any count in the indictment.

7. The prosecutor's email stated as to the s 31A application:

   [T]he s 31A application is in relation to cross-admissibility of counts on the indictment. In essence, the propensity we say a conviction would demonstrate is a propensity to act on his sexual interest in young girls between the ages of 8 - 12 years old by touching them in a sexual or indecent way during massages in the family home, whilst he had access to them, including whilst others were present.  (emphasis added)

8. The email then dealt with cross-admissibility between counts for a single complainant.  The State contended that, if the appellant was found guilty of a particular count, the jury could conclude that the appellant had a sexual interest in that complainant 'and a willingness to act on it by deliberately touching them in an indecent or sexual way during massages' (emphasis added).  As to cross-admissibility for counts involving different complainants, the prosecutor's email stated:

   In relation to cross-admissibility between complainants, the State contends that the jury could make use of a finding of guilt to conclude that the accused had a sexual interest in young girls between the ages of 8 - 12 who were close family friends and was willing to act on it in circumstances where they were accessible to him when visiting his house or when he was visiting theirs, and during massages by deliberately touching them in an indecent or sexual way, including in communal areas of the house whilst others were present.  (emphasis added)

9. The State's s 31A application was raised before the trial judge at a pre‑trial directions hearing on 11 November 2022. The appellant's defence counsel (who was not counsel for the appellant on the appeal) informed the trial judge that the application was not opposed. Defence counsel said that he did not really see how he could oppose the application in the circumstances. The trial judge agreed with that assessment.[1]

   [1] ts 88.

10. On appeal the State observes that the propensity it alleged was defined narrowly.[2]  That may be accepted.  As the State says in its written submissions:

    In relation to cross-admissibility between complainants, it [ie the alleged propensity] was defined by the age group of the girls in whom the appellant had a sexual interest (being young girls aged between eight to 12), by the appellant's relationship to them (being close family friends), and by the factual context (being the appellant's willingness to act on the sexual interest during massages in the family home whilst he had access to them, including whilst others were present).[3]  (emphasis added)

    [2] Respondent's submissions par 13.

    [3] Respondent's submissions par 13.

11. The State seeks to make a virtue of the narrowly defined propensity. In contending that the evidence of each offence was admissible under s 31A of the Evidence Act as propensity evidence the State says that the narrowly defined propensity means that the evidence has significant probative value.[4]  The prosecutor sought to rely on the narrowness of the alleged propensity in an additional way before the trial judge.  The prosecutor sought to rely on the narrowly defined propensity in opposing the appellant being permitted to call his daughter to give evidence to rebut the State's tendency argument.[5]

    [4] Respondent's submissions pars 11, 14 - 15.

    [5] ts 121 - 123.

12. It might be questioned whether it was necessary for the State to define the alleged propensity in such a narrow way.  Whether it was or was not necessary to define the alleged propensity narrowly is irrelevant to the proper disposition of the appeal.  Presumably the prosecutor considered that there was a forensic benefit in doing so - and, in any event, the prosecutor sought to make forensic use of the narrowly defined propensity.  For the purposes of the appeal the important point is that, for whatever reason, the State's case was advanced relying on an alleged propensity that was narrowly defined.

13. Nor, in our opinion, does it matter that the State's case on the appellant's alleged propensity was premised on a finding of conviction.  That might be considered unduly favourable to the appellant given the subsequent decision of the High Court of Australia in Director of Public Prosecutions (Vic) v Roder (a pseudonym).[6]  It is, however, the way in which the State framed its case at trial.

    [6] Director of Public Prosecutions (Vic) v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644.

14. Ultimately, in circumstances that we will now recount, the appellant's appeal complains - in part - about the trial judge's directions to the jury concerning the propensity evidence.  It will be necessary in due course to reproduce the relevant part of the trial judge's directions to the jury.  However, before doing that, mention will be made of the manner in which the question now before the court was eventually raised for determination.

The restatement and subsequent refining of the appellant's case on appeal

1. Regrettably, these reasons will be delivered a considerable time after the appellant's convictions following trial.  It is appropriate, in the circumstances, to explain the chronology that has resulted in what is a less than optimal state of affairs.

2. The appeal hearing was originally listed for 10.30 am on 25 October 2023.  However, on 24 October 2023 at 2.38 pm, counsel for the appellant sent an email to the associate to the Acting Court of Appeal Registrar requesting an adjournment of the appeal hearing.  The adjournment was requested as counsel was appearing in an ongoing trial in the District Court and was required to be in attendance at the trial the following day when the appeal hearing was listed to occur.  The matter was called on for a hearing at short notice to consider the adjournment application.  The parties' counsel appeared before the court at 4.30 pm on 24 October 2023.  In explaining her position to the court, counsel for the appellant said she had thought that alternative counsel would appear in her place but, about a week earlier, had realised that was not the case.[7]

   [7] Appeal ts 2 - 4.

3. Remarkably, the informal application to adjourn the appeal hearing was made without the appellant's knowledge or instructions.[8]

   [8] Appeal ts 5.

4. The informal application to adjourn the appeal hearing was effectively presented as a fait accompli.  Counsel for the appellant had double booked herself.  Concrete arrangements for alternative counsel had not been made when they ought to have been.  Nor had there been an application for an adjournment in a timely way.  All of this was deeply unsatisfactory and should never have happened.  It goes without saying that it should never be repeated.  But the two unpalatable options available to the court were to either allow the adjournment or require the appellant to present his appeal in person without the benefit of any notice to prepare his case for hearing.  The latter was plainly not in the interests of justice.  In this unsatisfactory state of affairs, due solely to the inattention and inaction of counsel for the appellant, the court vacated the appeal hearing and re-listed the appeal hearing for 10.30 am on 10 November 2023.

5. The appeal hearing commenced on 10 November 2023.  At that time there was a single ground of appeal.  The appellant contended that the verdicts of the jury were unreasonable and not supported by the evidence.  However, in the course of oral submissions counsel for the appellant sought to advance a different case on appeal based on the trial judge's directions to the jury.[9]  When it was pointed out that this was a different case, outside the scope of the single ground of appeal, counsel for the appellant sought to apply to amend the grounds of appeal.  Counsel said that the point had only occurred to her when she examined the trial judge's directions the previous night in preparing for the appeal hearing.[10]  That, however, was prima facie inconsistent with the fact that counsel for the appellant had sent an email to the Court of Appeal office, received 9.13 am the previous day, informing the court of additional cases that counsel wished to rely on.  It was readily apparent that those authorities were being relied on in support of the different case on appeal that counsel for the appellant sought to advance orally.[11]

   [9] Appeal ts 26 - 28.

   [10] Appeal ts 27.

   [11] Appeal ts 27 - 29.

6. It was unfortunate that counsel for the appellant did not seek to formulate grounds of appeal, in writing, in support of the different case on appeal in advance of the appeal hearing.  Nor, prior to the appeal hearing, did counsel for the appellant inform counsel for the State that she intended to advance the different case.[12]

   [12] Appeal ts 28.

7. In that unsatisfactory state of affairs the court determined that it should adjourn for a short time so that counsel for the appellant could formulate, in writing, the grounds of appeal she wished to rely on for the purpose of the different case on appeal.[13]

   [13] Appeal ts 29, 31.

8. When the court reconvened a short time later counsel for the appellant said that the additional ground of appeal was that the trial judge's direction was insufficient or inadequate and invited the jury to engage in impermissible propensity reasoning.[14]  However, the additional ground had not been reduced to a written form.  Nor had it been particularised or discussed with counsel for the State.[15]  When asked whether she was in a position to formulate the ground of appeal so that the appeal hearing could continue, counsel for the appellant said that she would need more time.  Earlier, counsel had mentioned requiring a period of one week.[16]

   [14] Appeal ts 31.

   [15] Appeal ts 31.

   [16] Appeal ts 32.

1. The court suggested that counsel for the appellant should proceed to complete her submissions on the existing ground and, if the appellant wished, there could be leave to make a post-appeal hearing application to amend the grounds, supported by written submissions, which could be dealt with on the papers.[17]  Counsel for the appellant agreed that the matter should proceed in that way.[18]  But then counsel for the appellant proceeded to make oral submissions which were plainly directed to the different case on appeal that she sought to advance rather than the existing ground of appeal.[19]  When it was pointed out that this was contrary to the agreed course that was to be followed, counsel for the appellant accepted that she needed to reformulate the appellant's case as the ground of appeal as presently formulated was unlikely to succeed or would not succeed.[20]

   [17] Appeal ts 32 - 33.

   [18] Appeal ts 33.

   [19] Appeal ts 33 - 37.

   [20] Appeal ts 38.

2. Ultimately counsel for the appellant abandoned the single ground of appeal as was before the court and said that she would recast the appellant's case.[21]

   [21] Appeal ts 38.

3. In the circumstances it was clear that the appeal hearing could not proceed any further on 10 November 2023.  Orders were made, to which counsel for the appellant agreed, that the appellant file and serve a substituted appellant's case within three weeks (ie by no later than 4.00 pm on 1 December 2023).  The court informed counsel for the appellant that it expected strict compliance with that order.[22]  However, the substituted appellant's case was not filed by the stipulated time.  A Registrar's Notice to Attend for directions on 18 December 2023 was issued on 7 December 2023.  That resulted in the appellant filing an application in an appeal dated 15 December 2023 seeking an extension of time in which to file and serve the substituted appellant's case.  The application was supported by an affidavit sworn by counsel for the appellant.  Counsel deposed that she had encountered computer difficulties on 1 December 2023 that had prevented the substituted appellant's case being filed on time.  A document was, however, submitted by counsel for the appellant at 5.53 pm on 1 December 2023.  It was not accepted for filing.

   [22] Appeal ts 39.

4. At the directions hearing on 18 December 2023 the court informed counsel for the appellant that the document that had been sought to be filed, out of time, as the substituted appellant's case was 'fundamentally deficient'.[23]  The presiding judge, Mazza JA, explained the numerous deficiencies in detail to counsel for the appellant.[24]  However, in the interests of justice - and in particular out of fairness to the appellant - it was considered appropriate to allow an extension of time within which the substituted appellant's case was to be filed and served.  The extension was to 4.00 pm on 3 January 2024.[25]  Ultimately a substituted appellant's case was filed and served on 4 January 2024.

   [23] Appeal ts 44.

   [24] Appeal ts 44 - 45.

   [25] Appeal ts 46.

5. Vandongen JA has summarised the two grounds of appeal advanced in the substituted appellant's case.  It is convenient to substantially reproduce ground 1.  Ground 1 commences:

   The judge erred in his directions as to cross admissibility and invited the jury to engage in improper propensity reasoning.

6. The ground goes on to set out portions of the trial judge's propensity directions at trial transcript ts 569 - 570.  Ground 1 then provides that:

   In this case there were 4 complainants, and it is submitted that the evidence that the appellant had committed a sexual offence against one complainant was not sufficiently probative of the appellant having committed an offence against another complainant.  It is submitted that the charges involving different complainants were not cross admissible against each other and the [trial] judge's direction invited impermissible propensity reasoning.

7. Counsel for the appellant's written submissions in support of ground 1 in the substituted appellant's case were directed, in substance, to whether, having regard to s 31A of the Evidence Act, the evidence of the charged acts in respect of one complainant was cross-admissible as propensity evidence or relationship evidence in relation to the alleged offences concerning the other complainants.  The appellant submitted that:  (1) there were more factual differences than similarities in the nature of the alleged offending (par 10); and (2) the trial judge's directions as to cross-admissibility invited improper propensity reasoning due to the differences in the type, nature and manner of the alleged offending (par 11).

8. Counsel for the appellant commenced her oral submissions in support of ground 1 consistently with what was advanced in the written submissions.  Counsel submitted that:

   [W]e say that the learned judge erred in ruling that all the counts on the indictment were cross-admissible as propensity evidence.  We say that only of [sic] the evidence of each complainant should have been cross‑admissible for that complainant.[26]

   [26] Appeal ts 53.

9. In short, it was said that as between the various complainants the alleged offending was not sufficiently similar to be cross-admissible.  However, counsel for the appellant then went on to say that, if the appellant failed on that submission, there was another point.  This was advanced by reference to counts 3 and 5.  In counsel for the appellant's submission, neither the alleged offending the subject of count 3 nor the alleged offending the subject of count 5 were committed under the guise of a massage.  It will be appreciated that the submission was misconceived as to count 5 - here, as previously discussed at [6], the alleged offending occurred in the context of a massage.  However, counsel for the appellant focused on the circumstance that the propensity relied on by the prosecution was said to be narrowly defined.  It was one of sexual interest in young girls (aged between 8 and 12 years of age) with whom the appellant had a relationship (being close family friends) and, importantly, in a particular factual context - being the appellant's willingness to act on the sexual interest during massages in the family home while the appellant had access to the young girls.[27]

   [27] Appeal ts 54 - 55.

10. The alternative argument, in effect, was that the offending the subject of counts 3 and 5 did not come within the stated propensity as relied on by the prosecution at trial.  Accordingly, in giving a propensity direction that did not distinguish between the alleged offending the subject of the various counts, the trial judge was alleged to have invited impermissible propensity reasoning.  The jury was invited to engage in propensity reasoning beyond that which was part of the State's case as opened by the prosecutor.[28]

    [28] Appeal ts 55 - 57.

11. Although counsel for the appellant advanced the additional argument by reference to counts 3 and 5, she said that - if the point were to be accepted - it would establish a miscarriage of justice in respect of each count.  This was because the jury could have started their deliberations by considering either count 3 or count 5.  Having decided to convict on either of those counts, the jury might then - given the trial judge's propensity direction - have taken that into account in their deliberations on any or all of the other counts on which the appellant was convicted when that ought not to have occurred.[29]

    [29] Appeal ts 57.

12. Counsel for the appellant conceded that the additional point, advanced orally at the appeal hearing, was not in her written submissions in the substituted appellant's case.  The point was said to have developed as counsel had been 'thinking about it over time'.  But, having made the argument in this way at the appeal hearing without objection, counsel for the appellant affirmed that ground 1 was to be understood as being limited to this point.[30]

    [30] Appeal ts 56.

13. Accordingly, at the appeal hearing, counsel for the appellant confined ground 1 to whether counts 3 and 5 were within the basis for cross-admissibility relied on by the State insofar as the State invoked s 31A of the Evidence Act and alleged a particular propensity.

14. While, in the circumstances, senior counsel for the State had not been forewarned of the additional argument pressed under the rubric of ground 1, he dealt with it in his oral submissions at the appeal hearing.[31]  We will summarise the State's submissions in addressing the merits of ground 1.  Also, in the circumstances we will now come to, the State was given the opportunity to file written submissions in relation to the contention.

    [31] Appeal ts 72 - 75.

15. In preparing reasons for decision the court identified that, while the additional argument in support of ground 1 had been presented by reference to counts 3 and 5, it was prima facie also applicable to count 10.  The court invited further submissions, limited to no more than three pages in length, on the following questions:

    1.Does the appellant's argument in relation to ground 1 extend to count 10; and, if so, what - if anything - is advanced in relation to ground 1 so far as it encompasses count 10?

    2.Was the trial judge's direction as to cross-admissibility consistent with the State's case insofar as the State invoked s 31A of the Evidence Act and alleged a particular propensity or tendency; if not, was there a miscarriage of justice?

16. The appellant was asked to provide his further submissions by 16 December 2024; the State was asked to provide its further submissions by 20 December 2024.  The State complied with the court's request for further submissions by the nominated date.  The appellant did not.  Counsel for the appellant belatedly sought an extension after the date for compliance had already expired.  A one‑week extension was granted.  The appellant did not file his submissions within the additional week permitted by the court.  However, the appellant eventually filed the further submissions on 30 December 2024.

17. Counsel for the appellant informed the court that the argument in relation to ground 1 extended to count 10.  Counsel stated that the failure not to raise the matter at the appeal hearing was an oversight on the part of the appellant's counsel.  In contending that there had been a miscarriage of justice, counsel further submitted that the reasoning that applied to counts 3 and 5 applied equally to count 10:  given the basis on which the State conducted its case there could be no cross‑admissibility as between complainants in relation to any counts involving offending unconnected with a massage.

The trial judge's propensity directions

1. Ground 1 as eventually restated and refined by counsel for the appellant requires consideration of the trial judge's directions to the jury concerning the use that might be made of the propensity evidence.

2. The trial judge started by informing the jury that he would give a 'very specific direction' as to the use that may or may not be made of the evidence in relation to one charge when considering the evidence in relation to another charge.  His Honour made the point that the sequence in which the jury considered the counts on the indictment was entirely up to the jury - they could, for example, start at count 10 and work backwards or start in the middle at count 5.  The trial judge explained, however, that the jury must examine the evidence in relation to each count separately to determine whether the acts alleged in each count had been determined beyond a reasonable doubt (ts 568).

3. The trial judge then referred to the State's case on propensity in the following terms:

   [C]ounsel for the State relies on the following:  that a finding of guilt on one of the charges establishes that [the appellant] has a sexual interest in young girls between the ages of eight to 12 years old.  And a propensity to touch them in a sexual or indecent way during massages in the family home whilst he had access to them, including whilst others were present.

   In relation to cross-admissibility between counts for a single complainant, the State contends that should you find [the appellant] guilty of any count on the indictment for a particular complainant, you could conclude that [the appellant] had a sexual interest in that particular complainant.  And a willingness to act on it by deliberately touching them in an indecent or sexual way during massages.  And that he had that propensity or tendency at the date of the alleged offending.

   In relation to cross-admissibility between complainants, the State contends that you, the jury, could use a finding of guilt to conclude that [the appellant] had a sexual interest in young girls between the ages of eight to 12 who were close family friends.  And was willing to act on it in circumstances where they were accessible to him when visiting his house or when he was visiting theirs.  And during massages by deliberately touching them in an indecent or sexual way, including in communal areas of the house whilst others were present.  And that he had the propensity or tendency at the date of the alleged offending.  (ts 568 - 569) (emphasis added)

4. It may be seen that this characterisation of the State's case was given by reference to the prosecutor's email dated 7 November 2022 that specified the State's case as to the propensity evidence.

5. Having described the State's case as to the alleged propensity, the trial judge said that there were some directions he needed to give about that aspect of the case (ts 569).  The trial judge gave the following directions:

   1.It was a matter for the jury to determine whether a finding that the appellant was guilty of one charge established a sexual interest or propensity or tendency as the State relied on (ts 569).  The jury must be satisfied beyond reasonable doubt that the evidence established the tendency or propensity and that the appellant was willing to give effect to the tendency or propensity (ts 571, 572, 578).

   2.If the appellant were acquitted of a charge, the jury could not use the evidence about the appellant's conduct in relation to that charge when considering the other charges (ts 569).

   3.However, if the jury were satisfied beyond reasonable doubt that the appellant was guilty of one of the charges, the evidence in relation to that charge may be relevant to the other charges - the trial judge directed that '[y]ou are permitted to consider the evidence of any charge on which you find [the appellant] guilty, along with all the other evidence, to decide whether the State has proved another charge in the indictment beyond reasonable doubt' (ts 569 - 570).  The trial judge subsequently made further statements to the same effect (see eg ts 571 par 1; ts 578 par 6).

   4.Insofar as the State relied on a finding that a propensity or tendency on the part of the appellant increased the likelihood that, among other things, the touching occurred, it would be open to the jury to conclude that an occurrence of an incident, the subject of one of the charges, increased the likelihood that the appellant committed another charge (ts 570).  But the trial judge went on to say:

   However, it is only open to you to come to that conclusion if you are satisfied that the occurrence of the incident established that [the appellant] had a sexual interest in that particular complainant or young girls aged between eight to 12.  And a tendency to act on this sexual interest by touching that particular complainant or young girls aged between eight to 12 in a sexual and indecent way when circumstances permitted.  And secondly, that [the appellant] had this sexual interest and tendency at the time of the specific act which is the subject of the remaining charge you are still considering.  (ts 570)  (emphasis added)

   5.The jury must carefully consider any time gap between the other offending and the subject offence (ts 570).

   6.Even if the jury accepted that the appellant was guilty of one of the counts on the indictment, they could not move automatically to a finding that he was guilty of any other count.  The jury could not reason that, simply because they were satisfied beyond reasonable doubt that the appellant committed an offence, he must necessarily have committed another offence which he was alleged to have committed.  In other words it did not follow that because the appellant was guilty of one offence he was necessarily guilty of another (ts 570).  The trial judge proceeded to repeat this direction on multiple occasions, using a number of variations to the same effect, in the ensuing part of his Honour's charge to the jury (see eg ts 571 pars 1 - 4 and 6; ts 572 pars 4 - 7; ts 573 par 1; ts 578 par 6; ts 579 pars 1 - 2).

   7.The evidence of tendency or propensity was not direct evidence of the charged offence and could only be considered in combination with the other evidence relating to the charge - it could not be used as a substitute for the evidence of the charged offence concerning a complainant in relation to a particular offence.  Unless satisfied that the evidence, as a whole, proved the guilt of the appellant beyond reasonable doubt, the jury could not use the tendency or propensity evidence to convict the appellant (ts 571; see also ts 572 pars 5 and 7).  The ultimate question remained whether, having regard to the whole of the evidence, the State had proved beyond reasonable doubt that the appellant committed the acts constituting each offence (ts 573).

   8.Even if the evidence had the effect contended for by the State in terms of tendency or propensity there were still restrictions on the use of the evidence:  (a) it could not make up for deficiencies in the evidence required to prove each element of the offence; (b) it could not be reasoned that it followed that the State's other evidence ought to be accepted as being thereby reliable; and (c) it remained the position that, to convict the appellant of a charge, the jury had to be satisfied that the State's evidence as to each element of the charge was truthful, accurate and reliable (ts 572).

6. The appellant's experienced and competent defence counsel did not raise any matters of concern in relation to the trial judge's propensity directions to the jury (ts 613 - 614).

7. It may be accepted that there were aspects of the trial judge's propensity directions that were unduly favourable to the appellant.  In the State's supplementary submissions dated 19 December 2024 senior counsel for the State referred to two ways in which the trial judge's directions were not in conformity with Roder (Roder, of course, having been decided after the appellant's trial).  First, the trial judge directed, in effect, that it was necessary for an offence to be established beyond reasonable doubt before the jury could be satisfied that the appellant had and was willing to give effect to the tendency or propensity relied on.  Secondly, the trial judge directed, in effect, that in assessing whether the appellant had and was willing to give effect to the tendency or propensity relied on, the jury were unable to have regard to the evidence of the appellant's conduct in relation to a charge of which he was acquitted.

8. Senior counsel for the State submitted that the disconformity between the trial judge's directions and the subsequent decision in Roder was relevant to the issue of whether there had been a miscarriage of justice.[32]

   [32] Respondent's supplementary submissions dated 19 December 2024 fn 9.

Ground 1:  consideration and determination

1. We have already recorded the appellant's submissions in support of ground 1. The State opposed ground 1. It is not necessary to set out the State's submissions as originally advanced in opposition to ground 1. Those submissions were largely directed to whether the evidence of each count was admissible as propensity evidence under s 31A of the Evidence Act as having significant probative value.  With the ongoing restatement and refinement of counsel for the appellant's argument this issue ceased to be the gravamen of ground 1.  Instead the focus of ground 1 became the trial judge's directions concerning the use of the propensity evidence.

1. As to the appellant's restated and refined argument on ground 1, the State submitted that:

   1.In focusing on factual dissimilarities in the various acts the subject of each count and the circumstances in which they occurred, the appellant's contention overlooked or ignored the very tendency or propensity that those acts were adduced to prove.  The State noted, in this respect, the unlikelihood that sexual interest or sexual behaviour would only ever manifest in one particular form or action.

   2.The prosecutor's articulation of the relevant tendency or propensity was focused upon - but, in the State's submission, 'not exclusively confined to' (original emphasis) - the occasions where the offending occurred during or proximate to a massage.[33]

   3.Neither counsel at trial raised any issue about the form of directions regarding the propensity evidence - in particular, defence counsel did not request a further direction or a redirection on the basis of any perceived error.

   4.The fact that the inter-complainant cross-admissibility was not contested by defence counsel at trial belied the occurrence of a miscarriage of justice.

   5.The conservative nature of the trial judge's propensity directions - said by the State to be unduly favourable to the appellant - also belied the occurrence of a miscarriage.

   [33] Respondent's supplementary submissions dated 19 December 2024 par 8.2.  See also appeal ts 72.

2. In short, according to senior counsel for the State, the trial judge's directions did not permit the jury to engage in improper propensity reasoning.  The trial judge properly directed the jury about the use and non-use of the propensity evidence.  Indeed, contrary to the thrust of ground 1 as restated and refined in oral submissions, senior counsel for the State submitted that the trial judge's directions curtailed the scope of what would otherwise have been permissible propensity reasoning.

3. It is convenient to deal with the State's final point at the outset.  We have already accepted that there were aspects of the trial judge's propensity directions that were unduly favourable to the appellant.  However, for reasons that we will now develop, there is a perceptible risk that the trial judge's propensity directions may have resulted in the jury reasoning to verdicts of guilty in a way that exceeded the State's case.  That perceptible risk is not eliminated - or even moderated - by the circumstance that other aspects of the trial judge's propensity directions were unduly favourable to the appellant.  The unduly favourable aspects of the propensity directions do not mean that there was no miscarriage of justice.

4. More critically to the disposition of the appeal, we do not accept the State's submission on appeal that the alleged propensity was merely focused on - but not exclusively confined to - a tendency to act on a sexual interest in young girls under the guise of giving those young girls a massage.  To the contrary, as advanced by the State at trial, the alleged propensity was limited to a tendency or propensity to touch young girls in a sexual or indecent way during massages.

5. In making this submission senior counsel for the State referred to the prosecutor's opening. The relevant passage from the opening is reproduced at [8] above. Senior counsel for the State emphasised the prosecutor's use of the words 'in particular'. This, it was said, acknowledged that sexual touching during massages was a common feature of many of the counts. But, according to senior counsel, it was not as if the prosecutor opened on the basis that it was an exclusive feature of the alleged propensity.[34]

   [34] Appeal ts 73.

6. The prosecutor's opening is to be understood in the context of the prosecutor's email explaining the State's case in support of the s 31A application. The prosecutor's email unambiguously confined the State's case as to the alleged propensity to one of touching young girls in a sexual or indecent way 'during massages'. That is the way in which the trial judge understood the State's case. As has been seen, his Honour described the State's case on the appellant's alleged propensity conformably with the prosecutor's email (see [46] - [47] above). In characterising the State's case at trial it is also significant that defence counsel decided not to oppose the State's s 31A application on the basis of the alleged propensity as articulated in the prosecutor's email. So too the trial judge acceded to the s 31A application on the basis of the alleged propensity as articulated in the prosecutor's email.

7. If the prosecutor wished to broaden the scope of the State's case as to the alleged propensity, much more needed to be done than was done in the prosecutor's opening.

8. In a criminal trial the State is required to formulate the basis on which it puts its case against the accused and, essentially, to adhere to that case.  If there is to be any change in the nature of the State case it is vital that it be identified with some precision (in the absence of the jury) before counsel commence their final addresses:  Robinson v The Queen.[35]  That never happened in the present case.  In any event, when, in his charge to the jury, the trial judge recounted the State's propensity case conformably with how it had been put in the prosecutor's email, the prosecutor did not then - or subsequently - seek to suggest that the trial judge was in error as to his understanding of the State's case as to the appellant's alleged propensity.

   [35] Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88 [141] - [142].

9. In considering this aspect of the appeal it is not to the point that the State might have relied on a broader alleged propensity.  The present issue is concerned with what the State's case was as to an alleged propensity rather than what the State's case might have been.  In that respect, as the State acknowledged and relied on elsewhere, the alleged propensity was defined narrowly and precisely (see [14] - [16] above).

10. Senior counsel for the State acknowledged that if the prosecutor's reference to 'in particular during massages' was to be read as 'exclusively' or 'only' his argument may well suffer from a problem.[36]  Senior counsel was correct to do so.  To explain why that is so it is necessary to turn back to the trial judge's propensity directions.  Relevantly, the trial judge initially faithfully recounted the State's case on the appellant's alleged propensity (see [46] above).  But then, in giving further directions, the trial judge broadened the scope of the propensity reasoning that the jury might engage in beyond the alleged propensity relied on by the State as part of its case (see [48] above).

    [36] Appeal ts 73.

11. There are two ways in which the trial judge's directions broadened the scope of the propensity reasoning:

    1.First, the trial judge expressed the alleged propensity in terms of a tendency to act on a sexual interest in young girls by touching them in a sexual and indecent way 'when circumstances permitted' - the alleged propensity was not confined to touching during massages (see [48.4] above) but encompassed touching in any scenario where the circumstances permitted.

    2.Secondly, conformably with the way in which the trial judge recast the alleged propensity, the trial judge directed the jury, in effect, that they might be satisfied of the alleged propensity if they were satisfied beyond reasonable doubt that the appellant was guilty of any one or more of the other charges.  But that could not have been the case in relation to a guilty finding on count 3 or count 10 if the alleged propensity was confined to the terms of the State's case as to the appellant's alleged propensity - those offences did not involve the appellant touching P or S in a sexual or indecent way during massages and could not ground the State's alleged propensity.

12. Generally speaking, in directing a jury a trial judge should not advance to the jury an argument in support of the prosecution case that was not put by the prosecution.  A miscarriage of justice will arise where a judge leaves the prosecution case to the jury on a basis which significantly departs from that advanced by the prosecution, in such a manner as to deprive the accused of a fair trial.  The unfairness of the trial may consist of the loss of an opportunity to make responding submissions, even where there is no additional evidence which the accused could have adduced.  See Nuhana v The State of Western Australia;[37] Roberts v The State of Western Australia;[38] PRS v The State of Western Australia.[39]  Even if the prejudice to the accused was confined to the inability to address the jury on the question, that itself is capable of being a most significant area of prejudice:  Robinson v The Queen [146].

    [37] Nuhana v The State of Western Australia [2018] WASCA 79 [69].

    [38] Roberts v The State of Western Australia [2019] WASCA 83 [52].

    [39] PRS v The State of Western Australia [2023] WASCA 106 [130].

13. However, a miscarriage of justice is not made out merely by there being a basis of guilt advanced that is additional to how the State put its case:  McCosker v The Queen.[40]

    [40] McCosker v The Queen [2023] NSWCCA 131 [103].

14. The latter point is demonstrated by this court's decision in PRS.  One aspect of PRS also concerned a trial judge's propensity directions.  In directing the jury the trial judge put the State's case on a basis that was different from the State's case as articulated by the prosecutor.  The court found, however, that the trial judge's direction did not occasion a miscarriage of justice.  In PRS, the trial judge's misstatement of the State's case confined the accused's willingness to act on the alleged propensity - it had the effect of narrowing the scope of the permissible propensity reasoning.  In the circumstances the court considered that the misstatement did not have a 'real chance' of affecting the jury's verdict on any of the counts and could not 'realistically have affected the verdict[s] of guilty' (referring, in this respect, to Hofer v The Queen).[41]

    [41] Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351 [41], [47], [123].

15. In the present case, for the reasons explained above, the trial judge directed the jury as to the use that they may make of the propensity evidence in a manner that was materially different from the State's case.  In the present case, unlike in PRS, the trial judge's directions broadened the scope of the propensity reasoning that the jury might engage in.  In these circumstances the trial judge's propensity directions gave rise to a miscarriage of justice.  In returning the verdicts of guilty there was a 'real chance' that the jury may have engaged in propensity reasoning that exceeded the scope of the State's case and, in that respect, the trial judge's error in directing the jury in a manner that departed from the State's case was one of a nature and degree that 'could realistically have affected' the jury's verdicts of guilty.

16. That conclusion appears clearly when the trial judge's propensity directions are considered in the context of his Honour's orthodox direction that it was a matter for the jury to determine where they might commence their deliberations.  There is, for example, a perceptible risk that the jury might have commenced their deliberations with count 10.  After all, the trial judge informed the jury that they might choose to start with count 10.  And, for reasons that need not be elaborated on, the evidence in support of count 10 was particularly cogent.  If the jury were satisfied that the offending the subject of count 10 was proven beyond reasonable doubt, the jury might then - in accordance with the trial judge's propensity directions - have been satisfied that the appellant had the alleged propensity as articulated by the trial judge (one to act on a sexual interest in young girls by touching them in a sexual and indecent way 'when circumstances permitted') and take that tendency or propensity into account when considering the other counts.  But that kind of propensity reasoning exceeded the State's case as to the appellant's alleged propensity.

17. The same difficulty arises with count 3.  And, so far as the jury's deliberations may have commenced with one or more of the counts involving alleged offending during a massage, there is a related difficulty.  Had the jury been directed in accordance with the State's case, they could not have applied the State's narrowly defined alleged propensity to the offending the subject of count 3 or count 10.  There was, however, no such limitation with the broader propensity reasoning permitted by the trial judge's directions.

18. The miscarriage of justice does not lie in the appellant's initial argument that, as a matter of law, the alleged offending was not sufficiently similar to be cross-admissible as between the different complainants. For present purposes it may be accepted, without deciding, that had the State sought to advance a case based on the broader alleged propensity, as articulated by the trial judge, s 31A of the Evidence Act would have permitted such a case. The miscarriage of justice is not concerned with the cross-admissibility of the evidence but rather with the trial judge's directions so far as those directions permitted a departure from the narrow propensity case as propounded by the State. In that respect the State's reliance on the undoubted fact that defence counsel did not oppose the s 31A application is beside the point. In any case defence counsel's non-opposition was premised on the alleged propensity as advanced by the State, not that broader alleged propensity subsequently articulated by the trial judge.

19. While, as explained, it is not the position that there will be a miscarriage of justice whenever a trial judge advances a basis of guilt that is additional to how the State put its case, we are satisfied that there was a miscarriage in the circumstances of the present case.  The miscarriage lies in the unfairness to the appellant occasioned by the timing of the trial judge's intervention and the circumstance that the propensity direction carried particular force because it came from the trial judge rather than the prosecutor.

20. The second matter is self-evident.  As to the first matter, it is material that, having opened on the use that may be made of the evidence in relation to one count when deliberating on the other counts, the prosecutor did not return to that subject in the prosecutor's closing address to the jury.  Quite understandably, in circumstances where that aspect of the State's case did not feature at all in the prosecutor's closing address, defence counsel did not address the jury on the issue.  It might, however, reasonably be expected that defence counsel would have done so had the prosecutor advanced the State's case conformably with the broader alleged propensity subsequently articulated by the trial judge.  Defence counsel then might have sought to highlight the dissimilarities and differences in the alleged offending to answer the broader alleged propensity in much the same way as counsel for the appellant did on appeal when initially focused on the issue of cross-admissibility.  Such an argument might well have been thought to be nonsensical or counter-productive in the context of the State's narrowly defined propensity centred on the appellant having a tendency or propensity to touch young girls in a sexual or indecent way during massages.

21. The trial judge's reformulation of the alleged propensity, after the completion of the prosecutor's and defence counsel's respective closing addresses, resulted in an unfair trial and occasioned a miscarriage of justice, so far as the appellant had no opportunity to make closing submissions to the jury on the matter.

22. In so concluding we have taken into account the State's submission that defence counsel did not raise any issue with the trial judge's propensity directions.

23. Sometimes, but not always, an omission to seek a direction or redirection by experienced and competent defence counsel may tend against the conclusion that a direction or redirection was required to avoid a perceptible risk of a miscarriage of justice:  De Silva v The Queen.[42]  In the present case, however, there is considerable doubt whether any redirection could ever have been effectual to undo the effect of the trial judge's reformulation of the alleged propensity.  The State did not offer any suggestions as to how a redirection might have been framed to overcome the difficulty brought about by the trial judge's broadening of the scope of the propensity reasoning that the jury might engage in.  Moreover, any redirection would be likely to have disadvantaged the appellant by bringing a greater emphasis to the State's reliance on the appellant's alleged propensity.

    [42] De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57 [35].

24. In these circumstances, defence counsel's omission to raise an issue with the trial judge's propensity directions does not have the significance that the State seeks to attribute to the omission.

25. Ground 1 does not, in terms, contend that the trial judge's propensity directions left the case against the appellant in a way that exceeded the State's case so as to occasion a miscarriage of justice.  It does, however, assert that the trial judge erred in his directions as to cross-admissibility and invited the jury to engage in 'improper' or 'impermissible' propensity reasoning.  By reformulating the alleged propensity, thereby broadening the scope of the propensity reasoning that the jury might engage in beyond the alleged propensity relied on by the State, the trial judge invited the jury to engage in improper or impermissible propensity reasoning.  The propensity reasoning was improper or impermissible so far as it advanced to the jury an argument in support of the State's case that was not put by the prosecutor.  The restated and refined argument ultimately presented by counsel for the appellant fits within the bounds of ground 1.  Indeed, senior counsel for the State did not contend to the contrary in his oral submissions at the appeal hearing or the written supplementary submissions provided at the court's invitation.

26. Ground 1 succeeds.

Conclusion and orders

1. The State did not rely on the proviso.  It follows that there should be leave to appeal on ground 1 and the appeal should be allowed.  The judgments of conviction on counts 3 - 10 should be set aside and the appellant should be retried on those counts.  Insofar as ground 1 succeeds it is not necessary to consider ground 2.  Leave to appeal on ground 2 may be refused.

2. We would order that:

   1.The appellant has leave to appeal on ground 1 in the substituted appellant's case dated 4 January 2024.

2.Leave to appeal on grounds 2 and 3 in the substituted appellant's case dated 4 January 2024 is refused.

3.The appeal is allowed.

4.The judgments of conviction on counts 3 - 10 of the indictment being IND 1475 of 2020 dated 9 November 2022 as presented to the District Court of Western Australia at Perth are set aside.

5.There be a new trial of the appellant on counts 3 - 10 of the indictment.

VANDONGEN JA:

Overview

1. The appellant was convicted after trial of several sexual offences that he committed against four children aged between 7 and 12 years old.  Having previously unsuccessfully appealed against a total effective sentence of 7 years and 6 months' imprisonment that was imposed on him, the appellant now seeks leave to appeal against conviction. 

2. The extremely unsatisfactory history of this matter has been summarised by Mazza and Vaughan JJA. 

3. Because of the sub-standard way in which this appeal has been conducted on behalf of the appellant, it has been difficult to identify the contentions made on his behalf.  Doing the best I can, it seems to me that the appellant ultimately relied on two grounds of appeal. 

1. The first ground of appeal is concerned with the State's reliance on propensity reasoning in support of its case that the appellant committed sexual offences against all four children, and, more particularly with the directions that were given by the trial judge about that aspect of the State's case.  The second ground is concerned with evidence given by three of the children that the appellant had engaged in other sexual conduct towards them that was not the subject of any charge on the indictment.

2. For the following reasons, while I would grant leave to appeal in relation to the first of the appellant's grounds of appeal, I would dismiss that ground.  I would refuse to grant leave to appeal in relation to the second of the appellant's grounds of appeal.

1. It follows that I would dismiss the appeal.

Overview of the State case

1. The State case was that the appellant sexually offended against four different children, P, M, R and S, when they were between 7 and 12 years old. 

2. The appellant was friends with R's father.  P and M are siblings, and R's parents knew the parents of P and M through home‑schooling.  The children became friends. 

3. P and M would often spend time together at R's house, particularly on weekends.  During the period 2015 ‑ 2017, the appellant would go to R's house once or twice every month, and he would often be there at the same time as P and M. 

4. The appellant had an interest in massage.  Although he was not a qualified massage therapist, he frequently gave massages to family and friends.  The appellant also gave massages to P, M and R while they were at R's house.  Massages would occur in R's bedroom or in the living room.  On occasions, the massages would occur while other people were present or in the near vicinity.

5. The State case was that on several occasions during this period, the appellant touched P, M and R in a sexual way.  On many occasions, this occurred under the guise of giving them massages.

6. By 2019, the appellant had stopped visiting R's father.  From the beginning of that year, the appellant had begun to visit another friend at her house over weekends.  The appellant's friend had a 7‑year‑old daughter, S.  S was friends with the appellant's daughter.

7. The State alleged that the appellant also touched S in a sexual way, including while purporting to give her a massage to treat abdominal migraines.

8. The appellant was charged on indictment with 10 offences. 

Counts 1, 2 and 3 - offending against P

1. P was born female, however, by the time of the trial, P identified as male, and he was referred to in that way throughout the trial.

2. In relation to P, the appellant was charged with one offence of sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA) (Code) (count 1) and two offences of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code (counts 2 and 3). P was between 8 and 10 years old at the time of counts 1 and 2, and about 10 years old at the time of count 3.

3. Count 1 was the first specific incident that P could recall.  P and M were at R's house.  P was lying face down on R's bed, with his head at the top of the bed.  P was receiving a massage from the appellant.  M and R were also in the bedroom at the time, playing a game on a computer.

4. The appellant used oil to massage P's back and shoulders.  P remembered that he was wearing a cropped top, and the appellant's hands went underneath the top.  The appellant then massaged P's legs, touched his buttocks, and grabbed at his inner thighs.

5. Count 2 was the second specific incident that P could recall.  The State's case was that this incident also occurred in R's bedroom, during one of the appellant's massages.  P recalled that he was wearing a one‑piece 'playsuit' on that occasion.  He was lying face-down on R's bed, and the appellant was sitting on top of him.  The appellant again massaged down P's thighs and touched his buttocks underneath his clothing.

6. The State case in relation to count 1 was initially that the appellant put his hands underneath P's clothing and underwear and tried to insert a finger or thumb into P's vagina.  However, in cross‑examination and in re‑examination, P indicated that he was unsure whether the appellant penetrated his vagina on this occasion.

7. Count 1 was then amended to another offence of indecent dealing with a child under the age of 13 years, contrary to s 320(4) of the Code.

8. The appellant was acquitted of both counts 1 and 2.

9. Count 3 concerned an incident that P said happened on about 25 November 2017. 

10. The appellant had been at P's house that day, visiting P's mother and giving his mother a massage.  After massaging P's mother, the appellant agreed to drive P to R's house.  P sat in the front seat of the appellant's car, and the appellant's two children sat in the back seats.  The appellant's children would have been 6 and 10 years old at the time, respectively, and P remembered that they were watching YouTube videos on electronic tablets.

11. During the drive to R's house, the appellant put his hand on P's upper thigh.  The appellant then moved his hand to P's inner thigh, rubbed the area in front of P's vagina and touched P's vagina over his clothing.  P could feel the appellant's thumb on his vagina rubbing back and forth.  P felt uncomfortable and tried to stop the appellant by moving away from him.  However, the appellant only stopped when they approached R's house.

12. The appellant was convicted of the offence charged in count 3.

Counts 4 and 5 - offending against M

1. In relation to M, the appellant was charged with one offence of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code (count 4), and one offence of sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Code (count 5). M was between 10 and 12 years old at the time of the offences.

2. In the context of count 4, it was alleged that while P, M, and R were in R's bedroom playing a computer game, the appellant entered the bedroom and offered to massage the children.  M accepted the appellant's offer, but the other children declined. 

3. M sat on a mattress which was on the floor of R's bedroom.  The appellant massaged M's shoulders.  The appellant's hands then moved close to M's breasts, but M was not sure whether he actually touched her breast. 

4. The appellant then asked M to lay down so he could massage her back, and she lay on the mattress facing downwards.  The appellant put his hands under her clothes and massaged her back, the back of her upper thighs, and calves.  M said that she thought that the appellant also touched her buttocks, but she was not sure.

5. M then moved from the bedroom to the living room, where she sat down on the armrest of a couch.  She sat on the armrest because there was nowhere else to sit as there were other people in the room as well.

6. While M was sitting on the couch, the appellant continued to massage her.  The appellant was standing behind her.  The appellant massaged M's hips, and then moved toward her lower abdomen.  The appellant then put his hand into M's shorts and underneath her underwear and touched around the area of her vagina, although he did not touch her genitals.  When M asked the appellant to stop, he ignored her, and continued rubbing around her vagina area.

7. M tried to stop the appellant touching her by standing up and moving away to get a plate of food. 

8. Count 5 was alleged to have occurred immediately after the incident the subject of count 4. 

9. After M retrieved her food and sat back down on the armrest of the couch, the appellant resumed massaging M and again put his hand down her pants and underwear.  This time the appellant rubbed around M's clitoris and on the outside of her vagina.  The appellant then penetrated M's vagina with his fingers by moving them up and down the middle of her vagina.

10. The conduct the subject of count 5 ended when M's parents entered the room and M got up and walked over to her father.

11. The appellant was convicted of counts 4 and 5.

Counts 6, 7 and 8 - offending against R

1. In relation to R, the appellant was charged with two offences of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code (counts 6 and 7), and one offence of sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Code (count 8). R was about 8 years old at the time of the offences.

2. In relation to count 6, the State's case was that P, M, and R were in R's bedroom playing a computer game.  The appellant entered the room and offered the children massages.  R agreed and lay down on the bed, facing upwards.  The appellant began massaging R's feet, and then moved his hands up R's leg and body.  He then put his hands under her shirt and grabbed at her breasts.  R gave evidence that her mother walked into the room when this was happening, and the appellant moved his hands to R's shoulders before he stopped touching her altogether.

3. In relation to counts 7 and 8, R gave evidence that she was sitting on the couch in the living room of her house.  R had mentioned that she had sore shoulders and so the appellant offered to give her a massage.  R's younger brothers and the appellant's children were in the general vicinity, watching television in the living room or playing around the house.  R's parents were in another room in the house. 

4. The appellant started to massage R's shoulders.  The appellant then put his hands under R's shirt and grabbed at her breasts.  That conduct formed the basis of count 7. 

5. The appellant then massaged R's hips, and although she told him to stop, the appellant put his hands down the waistband of her shorts and into her underwear.  The appellant then rubbed the entrance to R's vagina with his fingers.  That conduct formed the basis of count 8.

6. The appellant was convicted of the offence charged in count 7. 

7. The appellant was acquitted of the offence charged in count 8. However, the jury found him guilty of the alternative offence of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code.

Counts 9 and 10 - offending against S

1. In relation to S, the appellant was charged with two offences of sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Code. S was about 7 years old at the time of the offences.

2. S did not like to wear underwear because she had sensory issues.  For similar reasons, S also did not like to use a toilet, and she used a potty instead.

3. In relation to count 9, the State alleged that the appellant and his daughter went to S's house so that the children could have a playdate.  While they were there, S's mother gave the appellant permission to massage S to see if it might help with her abdominal migraines.

4. The appellant asked S to lie on the couch.  He then started to massage S around her torso but over her clothing.  The appellant then produced some massage oil and started rubbing S's body under her dress.  While the appellant was doing this, he put his finger into S's vagina.

5. S's mother was in the room while the massage was taking place.  However, she could not always see the appellant's hands.

6. In relation to count 10, the State alleged that on the evening of 22 June 2019, S went to the appellant's house to have a sleepover with his daughter.  At some stage during the sleepover, the appellant kissed S on the mouth and told her that he wished she was his girlfriend.  However, this conduct was not the subject of any charge.  The conduct that was alleged to have constituted count 10 occurred the following morning, after S had used a potty in the appellant's living room.  According to S's evidence, the appellant lifted her up and licked or kissed her vagina. 

7. The appellant was convicted of the offences charged in counts 9 and 10.

Uncharged sexual conduct

1. In addition to evidence that was directly concerned with the conduct alleged in respect of the 10 offences charged on the indictment, evidence was adduced by the State of other occasions on which the appellant was alleged to have sexually interfered with P, R and S.  As the appellant's counsel confirmed at the hearing of the appeal, this evidence was identified by the trial judge in his direction to the jury as 'uncharged acts' or 'other conduct' evidence (Other Conduct Evidence). 

2. In his visually recorded interview, P said that he was 'pretty sure' that 'it' happened more than once.  In context, P's reference to 'it' may be taken to have been a reference to having been touched by the appellant in a sexual way during massages.

3. P said that he would go over to R's house every few weekends, and that the appellant would be there 'most of the time'.  P gave evidence that 'it' would happen on two out of every three occasions.  P also said that 'it' would always start off with a massage, except for 'car incidents', which appeared to include the incident the subject of count 3. 

4. In examination‑in‑chief, P said that every time he went to R's house and the appellant was there, the appellant would massage him.  P said that this happened at least once a month.  P also said that the appellant would touch him on the vagina on at least half of those occasions.

5. R also gave evidence that the appellant had touched her in a sexual manner on occasions other than those that were the subject of any charge.  She said that the appellant regularly touched her breasts and put his hand in her pants while he gave her massages.  She also said that on another occasion, when the appellant was pretending to give her a massage, he tried to put his hands under her top.  She said that she pulled the appellant's hands out, pushed him away, and then went into her bedroom.

6. The jury also heard evidence from S that there were several other occasions on which the appellant massaged her with oil and touched her vagina area.  S also said that the appellant had touched her nipple under her clothing while he was massaging her, and that he had penetrated her vagina with a finger on more than one occasion.

The defence case

1. The appellant did not give evidence at his trial, although he did participate in a record of interview with police.  However, that interview was only concerned with the offending alleged against S.  In that respect, the appellant denied committing any offence against S. 

2. In his closing address, the appellant's trial counsel argued that there were several reasons why the jury should conclude that S was an unreliable witness, and why they should find that the appellant acted in various ways that were inconsistent with him having sexually interfered with her.  Counsel also suggested that the way in which the appellant appeared in his record of interview with the police demonstrated that his denials that he had committed any sexual offences against S should be accepted as truthful.

3. In addition to those matters, counsel made submissions about evidence that was elicited as part of the defence case from the appellant's family doctor, Dr Hilary Dickson.  Dr Dickson gave evidence about a medical examination she carried out on the appellant in December 2020 in which she noted that the appellant had a very short frenulum, which is the piece of skin that attaches the underside of the tongue to the floor of the mouth.  Dr Dickson explained that this meant that the appellant was unable to protrude his tongue to reach the bottom of his lower lip.  This evidence was adduced in an effort to demonstrate that the appellant was not physically capable of committing the offence charged in count 10, in which he was alleged to have licked or kissed S on her vagina.

4. There was no evidence of any interview having been conducted with the appellant in relation to any offences alleged to have been committed against P, M or R.

5. The appellant relied on several arguments in support of a contention that the evidence of  P, M, and R was not credible and was therefore incapable of proving that the appellant had committed any of the alleged offences beyond reasonable doubt.  In short, the appellant's case was that the complainants had made up their evidence, or that their various allegations that the appellant had committed sexual offences against them were the products of their imagination. 

Grounds of appeal

1. The appellant ultimately relied on two grounds of appeal. 

2. As I will explain, the first ground of appeal, properly understood, is concerned with the trial judge's directions about the State's reliance on propensity reasoning.  The second ground is concerned with a different, but related, topic, namely the admissibility of the Other Conduct Evidence.

3. The appellant originally relied on a third ground of appeal.  However, counsel for the appellant advised the court at the final hearing of the appeal that ground 3, as set out in the 'substituted appellant's grounds of appeal' that was filed as part of the substituted appellant's case dated 4 January 2024, should be understood as a particular to ground 2, and not as a separate ground of appeal. 

4. Before dealing with the grounds of appeal in more detail, including by identifying the appellant's complaints, it is convenient to first explain how the State sought to rely on propensity reasoning at the trial, and also the basis on which the jury were permitted to take the Other Conduct Evidence into account.

Propensity reasoning and evidence of uncharged acts

1. Many months before the start of the appellant's trial, the prosecutor who then had conduct of the appellant's matter filed a written application in the District Court in which she sought an order in the following terms:

   The evidence in relation to each count on the indictment relating to the accused … is cross-admissible in relation to all other counts on the indictment as propensity evidence as defined in s 31A of the Evidence Act 1906 (WA). (emphasis added)

2. Shortly before the appellant's trial was due to commence, and in support of that application, the prosecutor who had conduct of the trial sent an email to the trial judge's associate, and to the appellant's trial counsel, which included the following:

   I confirm that the s 31A [of the Evidence Act 1906 (WA)] application is in relation to cross-admissibility of Counts on the Indictment.  In essence, the propensity we say a conviction would demonstrate is a propensity to act on his sexual interest in young girls between the ages of 8 -12 years by touching them in a sexual way during the massages in the family homes, while he had access to them, including whilst others were present.

   •In relation to cross-admissibility between counts for a single complainant the State contends that, should the jury find the accused guilty of any count on the Indictment, the jury could concluded [sic] that the accused had a sexual interest in that particular complainant, and a willingness to act on it by deliberately touching them in an indecent or sexual way during massages.

   •In relation to cross-admissibility between complainants, the State contends that the jury could use a finding of guilt to conclude that the accused had a sexual interest in young girls between the ages of 8 and 12 who were close family friends and was willing to act on it in circumstances where they were accessible to him when visiting his house or when he was visiting theirs, and during massages by deliberately touching them in an indecent or sexual way, including in communal areas of the house whilst others were present.  (emphasis added)

3. It may be seen that in relation to cross-admissibility, the prosecutor expressed the propensity she sought to rely on in relatively narrow terms.  She may have taken that approach because this court has in the past observed that pitching a relevant propensity at a high level of generality can undermine the probative force of propensity evidence.[43]  There is, however, a question about just how narrowly the alleged propensity was pitched.

   [43] LBH v The State of Western Australia [No 2] [2023] WASCA 99 [47] ‑ [49]; RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185]; The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [20] - [23].

1. The trial judge then went on to give the jury 'directions of law', about how the jury could not use a finding of guilt on any one or more of the offences.  Relevantly, when giving the jury those directions the trial judge said:

   [I]f you do find [the appellant] guilty of one count and [are] satisfied beyond a reasonable doubt that it shows he had a sexual interest in a particular complainant or young girls aged between eight to 12 on the relevant date, and was prepared to act upon that sexual interest, then the fact he had the sexual interest is something you can take into account with all the other evidence relating to the charge you are considering in determining whether you are satisfied of guilt beyond a reasonable doubt.

   Even if you were to find that he did have a sexual interest in a particular complainant or in young girls aged between eight to 12 on the day in question, and was prepared to act upon it, that by itself could not justify a conviction on any other count. By itself, it proves nothing. It is only in combination with the other evidence that you may consider it.  (emphasis added)

2. Neither counsel raised any issues with the trial judge about these directions.

Determination of ground 1

1. I accept the argument put by senior counsel for the respondent, who dealt with the appellant's new argument in support of ground 1 in his oral submissions on the fly at the hearing of the appeal.  As senior counsel correctly submitted, the State did not allege at the appellant's trial that the appellant had a confined propensity to act on his sexual interest in young girls of a particular age during massages. 

2. Although the prosecutor who appeared at the appellant's trial articulated the propensity reasoning on which the State sought to rely in an email sent prior to the commencement of the trial, it is the prosecutor's opening address that is of critical importance in determining the relevant scope of the State's case.  After all, it was in her opening address that the prosecutor explained to the jury how the State invited them to use that type of reasoning.  In any event, neither the trial judge nor the appellant's very experienced and competent trial counsel made any suggestion that there was any material variance between what the prosecutor had said in her email when compared to what she said in her opening address.

3. As can be seen from the extract taken from the prosecutor's opening address, which is reproduced at [156] of these reasons, when explaining to the jury the propensity reasoning relied on by the State, the prosecutor said that:

   [the appellant] was willing to act on that sexual interest in circumstances where he had access to those children at family homes and in particular during massages including massages done in communal areas of the home while others were present.  (emphasis added)

4. In my view, although there is no question that the prosecutor expressed the alleged propensity narrowly in opening, she did not restrict the State's case as to the alleged propensity to one in which it was alleged that the appellant was willing to act on a sexual interest in young girls during, and only during, massages.  Instead, the prosecutor's address should be understood as an attempt to explain, by the use of the phrase 'and in particular', that it was the State's case that the appellant was willing to act on a sexual interest in young girls when he had access to them, especially or more frequently, but not exclusively, during massages. 

5. This understanding of what the prosecutor said in her opening address accurately reflects the range of conduct in which the appellant was alleged to have engaged.  In that regard, it was the State case that the appellant committed sexual offences against four young girls when he had access to them, 'and in particular' during massages.  In those circumstances, this is what the jury must have understood by the phrase 'and in particular' and what the jury would have taken from the prosecutor's opening address more generally.     

6. That the prosecutor did not confine, and should not be understood to have confined, the scope of the alleged propensity to one that only extended to the appellant acting on a sexual interest during massages, is confirmed by several other considerations.

7. Firstly, the State conducted its case on the basis that the evidence relating to each count on the indictment was cross-admissible (for propensity reasoning purposes) in proof of all other counts on the indictment.  That the State's case was conducted on this basis can be seen from at least the following:

   (a)In its written application filed before the trial, the contents of which I have already reproduced, the State sought an order that the evidence in relation to each count on the indictment was cross‑admissible in relation to all other counts on the indictment, as propensity evidence.

   (b)The email the prosecutor sent to the trial judge's associate and to the appellant's trial counsel just before the commencement of the trial referred to a 's 31A application … in relation to cross‑admissibility of [c]ounts on the indictment'.

   (c)In her opening address the prosecutor told the jury that if they were satisfied beyond a reasonable doubt of the appellant's guilt of one of the counts in relation to a particular complainant, they may find that it is more likely that the appellant also did the other charged acts alleged by the other three complainants. 

   (d)The prosecutor used the counts relating to P as a specific example to explain how the jury might use propensity reasoning in assessing whether the State had proved that the appellant had committed offences against all of M, R or S.  Of course, P was the complainant in count 3, which is one of the two counts that is the focus of this ground of appeal, and an offence that was not alleged to have been committed during a massage.

8. A State case that was conducted on the basis that the evidence underpinning each count on the indictment was admissible in proof of every other count cannot, in my respectful view, be reconciled with a conclusion that the prosecutor conducted the State case on the basis of a narrowly confined alleged propensity to act on a sexual interest in young girls, exclusively during massages.

9. Secondly, and as I have already noted earlier in these reasons, the prosecutor argued in her closing address that the appellant:

   would take advantage of opportunities that presented themselves from time to time, perhaps simply when he couldn't control himself any longer and that he did that in order to indecently deal with children that he was sexually attracted to, children that weren't his but who he had access to.  (emphasis added)

10. It may be seen that in making that submission, the prosecutor did not suggest or imply that her argument should only be adopted by the jury in relation to those counts on the indictment in respect of which it was alleged the appellant had access to young girls during massages.  The scope of the prosecutor's argument was substantially broader, reflecting the broader nature of the State's case.

11. Thirdly, the appellant's trial counsel, who was plainly very well prepared for the appellant's trial, must have appreciated that counts 3 and 10 were not alleged to have been committed during a massage.  He also could not have failed to realise that the State's case was that the evidence admissible in relation to each count on the indictment was admissible in proof of all of the other counts, including counts 3 and 10.  As defence counsel made no complaint about the way in which the State put its case as to the alleged propensity before or at any time during the trial, it is inconceivable that he could have been operating under the impression that the propensity sought to be relied on by the State was restricted to one in which the appellant was willing to act on a sexual interest during, and only during, massages. 

12. Fourthly, I am of the view that the trial judge was not under the impression that the State's case about propensity was confined to one that the appellant was only willing to act on during massages.  Instead, the manner in which the trial judge conducted the trial demonstrates that he understood the State case on propensity consistently with what I have said about the prosecutor's opening address.

13. After considering the State's written application and the prosecutor's email before the start of the trial, the trial judge ruled that the evidence admissible in respect of each count on the indictment (in respect of which the jury was prepared to find the appellant guilty) was admissible in proof of all other counts on the indictment.  When the trial judge made that decision, it could not have escaped his attention that two of the counts on the indictment were not alleged to have been committed by the appellant during a massage.  That decision to allow the State's application is not consistent with the idea that the trial judge understood that the prosecutor intended to rely on a propensity in which the appellant was willing to act on a sexual interest in young girls, but only during massages.

14. The trial judge, who has had extensive experience in the practice of the criminal law, sat through the trial, including the prosecutor's opening address and the evidence of all four complainants.  However, at no stage did his Honour ever express any uncertainty or raise any issues about the State's case as to the alleged propensity.  Specifically, the trial judge raised no issue about whether the propensity relied on by the State was confined to a willingness on the part of the appellant to act on a sexual interest in young girls during massages. 

15. In my view, the trial judge's directions also reflected a State case in which the alleged propensity relied on was broader than the one suggested by the first step of the appellant's argument.  This confirms that the trial judge understood that it was the State's case that the appellant had a sexual interest in young girls of a particular age, and that he had a tendency to touch them when circumstances permitted, as his Honour directed.  Those circumstances, especially or more frequently (but not exclusively), included when the appellant was massaging such young girls.

16. Neither the prosecutor not the appellant's trial counsel made any relevant complaint about the trial judge's directions.  Had the appellant's very experienced trial counsel thought that the trial judge had reformulated the State's case as to the appellant's propensity, there is no objectively rational reason why he would not have raised that with the trial judge, even if it would not have been practically open to give the jury any curative directions.  This further reinforces the conclusion that, contrary to the first step in the appellant's argument in support of ground 1, the State did not rely on a propensity that was limited to acting on a sexual interest in young girls during massages.

17. As Mazza and Vaughan JJA have observed, during argument that took place before the commencement of the trial, the prosecutor did rely on the narrow way in which the alleged propensity was expressed.  On that occasion, defence counsel sought a pre-trial ruling that he be permitted to adduce evidence from the appellant's young daughter that the appellant had never touched her in a sexual manner.  Defence counsel argued that this evidence was capable of rebutting the State case that the appellant was willing to act on a sexual interest in young girls.

18. The prosecutor opposed defence counsel's application.  In her submissions, the prosecutor described the propensity on which the State sought to rely as 'quite narrow'.  However, in describing the alleged propensity in that way, the prosecutor was not referring to the aspect of the propensity that related to massages.  Instead, the prosecutor was making the point that the alleged propensity was concerned with the appellant's willingness to act on a sexual interest in young girls who were unrelated to him.  In that context, the prosecutor's contention was that the evidence the appellant sought to adduce from the appellant's daughter was irrelevant because, as his daughter was related to him, her evidence would have been incapable of rebutting the particular propensity reasoning relied on by the State.

19. In my view, the essential premise of the appellant's argument in support of ground 1 has not been established.  It follows that the appellant has failed to establish that a miscarriage of justice occurred.

20. Mazza and Vaughan JJA have concluded that the trial judge reformulated the propensity on which the State sought to rely after counsel had completed their closing addresses, and that this resulted in an unfair trial occasioning a miscarriage of justice.  I have adopted a different approach to the ground of appeal than that adopted by their Honours.  However, in adopting that approach, I have concluded that the trial judge's directions did not reformulate the State's case on propensity.  Accordingly, had it been necessary for me to decide, I would necessarily have concluded that the appellant's trial was not unfair and that no miscarriage of justice was occasioned.

21. While I would grant leave to appeal, I would dismiss ground 1.

Ground 2

1. Ground 2 is concerned with the admissibility of the Other Conduct Evidence.

2. Based on the way in which ground 2 was drafted, the appellant's complaint appeared to be that the trial judge should have given the jury a direction that warned them against engaging in propensity reasoning in relation to the Other Conduct Evidence. However, at the hearing of the appeal, counsel contended that ground 2 was a complaint that the Other Conduct Evidence was inadmissible because it was irrelevant. Then, under questioning from the court, counsel shifted the ground once again to espouse an argument that the Other Conduct Evidence was not admissible because it did not satisfy the requirements of s 31A of the Evidence Act.  Under further questioning, counsel then retreated from that position and conceded that the Other Conduct Evidence was relevant.  Ultimately, counsel embraced an argument that a miscarriage of justice occurred because the Other Conduct Evidence should have been excluded in the exercise of the trial judge's discretion to refuse to admit evidence because its probative value was outweighed by its prejudicial effect.

3. Recently, in Coomer v The State of Western Australia,[45] this court considered a question about the standard of appellate review that must be applied where evidence was admitted at trial without objection, but it is argued on appeal that a miscarriage of justice occurred because the prejudicial effect of that evidence outweighed its probative value.  In Coomer, it was noted that the common law power to exclude evidence on the basis that its prejudicial effect outweighs its probative value (commonly known as the 'Christie discretion'[46]) has for a long time been regarded as being discretionary in nature.  In Coomer I referred to authorities that suggested that where it is argued on appeal that evidence that was admitted at trial without objection was inadmissible on the basis that its prejudicial effect outweighs its probative value, the court must be persuaded that the only appropriate exercise of the Christie discretion would have been to exclude the evidence.[47] 

   [45] Coomer v The State of Western Australia [2024] WASCA 133.

   [46] See R v Christie [1914] AC 545.

   [47] R v S, DD [2010] SASCFC 80; (2010) 109 SASR 46 [120] ‑ [123], cited with approval in Falkiner v The Queen [2019] SASCFC 118 [39]. See also R v Nelson [2004] NSWCCA 231; (2004) 41 MVR 10 and R v Taouk [2005] NSWCCA 155; (2005) 154 A Crim R 69.

4. However, in Coomer, I noted (with the separate agreement of Mazza & Hall JJA) that since the decision in Moore (a pseudonym) v The King,[48] this may not be the correct approach. Instead, I suggested that an appellate court may in fact be required to determine the question of whether a miscarriage of justice occurred by applying the 'correctness standard',[49] and to decide for itself whether the prejudicial effect of the evidence did outweigh its probative value.

   [48] Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119.

   [49] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 552. See also Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23].

5. As in Coomer, in this case the parties did not make any submissions about the proper approach to be taken in the circumstances of this case.  Accordingly, I am of the view that the court should not finally determine this issue.  However, I propose to adopt the correctness standard in deciding whether there was a miscarriage of justice.  This is because the correctness standard is more favourable to the appellant.  Under the correctness standard, the appellant is not required to establish that the only appropriate exercise of the Christie discretion would have been to exclude the evidence.

6. Two further matters must be noted.

7. Firstly, as explained by Mazza JA (with whom Buss P & Newnes JA agreed) in RKT v The State of Western Australia:[50]

   Where evidence is admitted without objection, it will be difficult for an appellant to establish a miscarriage of justice. This is because, generally, an appellant is bound by the way defence counsel conducted the trial.

   At least two issues arise when it is alleged that evidence adduced without objection gave rise to a miscarriage of justice. First, was the evidence technically admissible? Second, if it was inadmissible, was the failure to object for rational forensic reasons. When addressing this second question, this court is concerned with whether counsel's decision was objectively capable of explanation on that basis. Moreover, there will be no miscarriage of justice unless the inadmissible evidence occasioned material prejudice to the appellant.  (citations omitted)

   [50] RKT v The State of Western Australia [2017] WASCA 13 [51] ‑ [52].

8. Secondly, in making an assessment of whether the evidence complained of was inadmissible because its prejudicial effect outweighed its probative value, it is relevant to consider the directions that were given to the jury.  The answer to the question of whether a miscarriage of justice was actually occasioned in this case will be informed by considering whether the trial judge's directions adequately mitigated any identified prejudicial effect of the evidence.[51]

   [51] R v Hards [2018] SASCFC 132 [24] (Bampton J; Kourakis CJ & Stanley J agreeing), citing R v Dickman [2017] HCA 24; (2017) 261 CLR 601[57].

9. In this case the trial judge directed the jury that it was open to use the Other Conduct Evidence in two ways.  The first way in which that evidence could be used was to help explain why M, P and R did not make immediate complaints, and why they may have appeared to have allowed the appellant's sexual conduct to continue.  The second way in which it was open to the jury to use that evidence was on the basis that the repeated nature of the alleged sexual conduct might explain why those children were sometimes unable to remember certain details about specific incidents.

10. At the hearing of the appeal, counsel expressly conceded that the Other Conduct Evidence was relevant.[52]  That concession was properly made.  The evidence was plainly admissible.  Accordingly, whether the evidence was admissible falls to be determined by reference to whether the probative value of the evidence was outweighed by any prejudicial effect the evidence may have had.

    [52] Appeal ts 68 ‑ 69 (14 June 2024).

11. As this court explained in Le-Ta v The State of Western Australia:[53]

    A trial judge's discretion to exclude admissible evidence where the prejudicial effect of the evidence outweighs its probative value is well‑established.  In this context, it is important to understand what is meant by 'prejudice'.  Evidence is not prejudicial simply because it tends to prove the guilt of the accused.  Prejudice arises from the risk of improper use of the evidence.  Evidence will be prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.  As Nettle J has explained [in Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403 [62]], by this discretion, evidence is excluded where and because its capacity to lead a jury to reason correctly to a verdict of guilt is outweighed by its capacity to lead the jury to reason incorrectly to a conclusion of guilt. (emphasis added) (footnotes omitted)

    [53] Le-Ta v The State of Western Australia [2020] WASCA 14 [44]. See also, Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [22] and R v Dickman [2017] HCA 24; (2017) 261 CLR 601 [48].

1. When asked by the court to identify the relevant prejudice associated with the Other Conduct Evidence, counsel for the appellant said that the only prejudice relied on in this context was the risk that the jury may have used that evidence to engage in propensity reasoning.[54] 

   [54] Appeal ts 70 (14 June 2024).

2. The appellant's submissions must be rejected.

3. While there was an obvious risk that the jury might have used the Other Conduct Evidence to engage in propensity reasoning contrary to the State's case, that risk was comprehensively dealt with by the trial judge in his directions about how they could not use the Other Conduct Evidence, about which there is no complaint.  In that regard, the trial judge clearly instructed the jury that:

   (a)they could not take the Other Conduct Evidence into account in deciding whether the State had proved beyond reasonable doubt that the appellant committed any of the offences charged on the indictment;

   (b)the Other Conduct Evidence did not provide evidence that any of the offences on the indictment occurred;

   (c)they were not permitted to reason that, just because the appellant did an act or acts established by the Other Conduct Evidence, he must have committed the offences charged on the indictment;

   (d)they could not use the Other Conduct Evidence in substitution for evidence of the acts the subject of each charge;

   (e)they were not permitted to use the Other Conduct Evidence to reason that, just because the appellant engaged in other sexual conduct involving a complainant, he therefore must have committed the offences charged on the indictment;  and

   (f)they could not conclude that, just because the appellant engaged in the other conduct, he was the kind of person who was likely to have committed any of the offences charged on the indictment or that he had any particular tendency.

4. Our system of justice operates on the assumption that, as a general rule, juries understand and follow instructions that are given to them by trial judges.[55]  In this case, it was not suggested that the jury did anything other than follow the trial judge's instructions.

   [55] Gilbert [13] (Gleeson CJ & Gummow J), [31] (McHugh J); Dupas [28] ‑ [29] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).

5. In my view, the trial judge's directions removed any perceptible risk that the jury may have used the Other Conduct Evidence to impermissibly engage in propensity reasoning and to thereby reason incorrectly to a conclusion of guilt.  Indeed, it may well be concluded that many of the directions were unduly favourable to the appellant.  For example, it is difficult to understand why the trial judge specifically warned the jury that they could not take the Other Conduct Evidence into account in deciding whether the State proved beyond reasonable doubt that the appellant committed any of the specific offences charged on the indictment.  The Other Conduct Evidence was adduced for that very purpose.

6. Nevertheless, it is abundantly clear that the directions that were given meant that any risk that the jury may otherwise have used the Other Conduct Evidence to impermissibly engage in propensity reasoning was substantially outweighed by the undisputed probative value of that evidence.

7. I would refuse leave in relation to this ground of appeal.

Conclusion

1. I would grant leave to appeal in respect of ground 1 but dismiss that ground.  I would refuse leave to appeal in respect of ground 2.

2. It follows that I would dismiss the appeal.

   I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

   ST

   Associate to the Honourable Justice Mazza

   25 FEBRUARY 2025