PRS v The State of Western Australia

[2023] WASCA 106

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   PRS -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 106

CORAM:   BUSS P

MAZZA JA

VAUGHAN JA

HEARD:   17 MARCH 2023

DELIVERED          :   1 MAY 2023

PUBLISHED           :   7 JULY 2023

FILE NO/S:   CACR 18 of 2022

BETWEEN:   PRS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   BURROWS DCJ

File Number            :   IND XXX of 2019

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of four counts of child sex offending comprising one count of unlawful and indecent assault (count 1), two counts of indecent dealing (counts 2 and 3) and one count of sexual penetration (count 4) - Offending related to three girls who were sisters or step‑sisters - The complainants were the younger female siblings of the appellant's wife or partner - Propensity evidence - The State alleged that if the jury found the appellant guilty of any one of the counts then that finding of guilt would reveal a tendency by the appellant to be 'sexually interested in [his wife or partner's] younger female siblings' - The State relied upon the alleged tendency solely for the purpose of the jury determining whether any charged physical conduct, the subject of counts 1, 2 and 3, which the jury were satisfied having regard to other evidence had occurred, was indecent - Whether a finding of guilt solely in relation to one count was logically capable of establishing that the appellant had a sexual interest in the other complainants when the alleged offending against the other complainants occurred - Whether the trial judge misdirected the jury in relation to the alleged tendency or its use

Legislation:

Criminal Code (WA), s 321(2), s 321(4), s 324(1)
Evidence Act 1906 (WA), s 31A

Result:

Leave to appeal granted
Appeal allowed
Judgments of conviction on counts 1, 2, 3 and 4 set aside
There be a new trial of the appellant on counts 1, 2, 3 and 4

Category:    B

Representation:

Counsel:

Appellant	:	Mr S D Freitag SC
Respondent	:	Ms K C Cook

Solicitors:

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

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

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1

Drago v The Queen (1992) 8 WAR 448

Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 394 ALR 194

Hill v The State of Western Australia [2019] WASCA 209

Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937

HTD v The State of Western Australia (No 2) [2019] WASCA 39

JPH v The State of Western Australia [2022] WASCA 99

La Bianca v The State of Western Australia [2019] WASCA 105

Lilley v The State of Western Australia [2019] WASCA 164

LNN v The State of Western Australia [2021] WASCA 39

LNV v The State of Western Australia [2019] WASCA 180

McCosker v The King [2023] NSWCCA 131

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

R v Bauer (A Pseudonym) [2018] HCA 40; (2018) 266 CLR 56

R v Dookheea [2017] HCA 36; (2017) 262 CLR 402

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

The State of Western Australia v Jackson [2019] WASCA 118

The State of Western Australia v JHN [2021] WASCA 225

REASONS OF THE COURT:

1. This is an appeal against conviction.

2. The appellant was charged on a District Court indictment with four counts.

3. Count 1 alleged that on a date unknown between 21 August 2006 and 1 February 2007, at a Perth suburb, the appellant unlawfully and indecently assaulted JD by touching her on the upper thigh, contrary to s 324(1) of the Criminal Code (WA) (the Code), and that the appellant was in a family and domestic relationship with JD.

4. Count 2 alleged that on a date unknown between 7 January 2007 and 9 January 2009, at a Perth suburb, the appellant indecently dealt with BK, a child of or over the age of 13 years and under the age of 16 years, by sucking her toe, contrary to s 321(4) of the Code.

5. Count 3 alleged that, on the same date and at the same place as in count 2, the appellant indecently dealt with BK, a child of or over the age of 13 years and under the age of 16 years, by touching her on the inner thigh, contrary to s 321(4) of the Code.

6. Count 4 alleged that on a date unknown between 8 March 2012 and 9 September 2012, at a Perth suburb, the appellant sexually penetrated KK, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his finger, contrary to s 321(2) of the Code.

7. The appellant was initially tried between 26 July 2021 and 30 July 2021 before Sharp DCJ and a jury.  The jury was unable to agree upon verdicts.

8. The appellant was then retried between 31 January 2022 and 4 February 2022 before Burrows DCJ and a jury.  The jury convicted the appellant on all of the counts.  It is convenient to refer to Burrows DCJ as the trial judge.

9. On 4 March 2022 the trial judge imposed a total effective sentence of 4 years 2 months' immediate imprisonment with eligibility for parole.  The total effective sentence was backdated to 12 September 2021 to take account of time the appellant had spent in custody in relation to the offences.

10. On 17 March 2023, this court heard the appeal.  On 20 March 2023, pursuant to an invitation from the court, the appellant filed an application in an appeal for bail pending the determination of the appeal.  On 23 March 2023, the court granted the appellant bail pending the determination of the appeal.

11. The appellant relies upon four grounds of appeal.

12. Ground 1 alleges that the trial judge made a wrong decision on a question of law, or a miscarriage of justice was occasioned, because her Honour directed the jury that it was open to them to use a finding of guilt on one or more of the counts in deciding whether the State had proved the element of indecency in relation to counts 1, 2 and 3.

13. Ground 2 alleges that her Honour made a wrong decision on a question of law, or a miscarriage of justice was occasioned, because her Honour directed the jury that the State's case included a contention that a finding of guilt on one or more of the counts 'establishes a propensity, or tendency of [the appellant] to act on that sexual interest by touching those girls in a sexual and indecent way when the circumstances permitted, namely in the lounge room of the relevant home in which he was living at night‑time when his wife had gone to bed', when that was not the State's case.

14. Ground 3 alleges that a miscarriage of justice was occasioned because, if it was open to the jury to use a finding of guilt on one or more of the counts in deciding whether the State had proved the element of indecency in relation to counts 1, 2 and 3, the jury were not directed that they could only use that determination:

    (a)if they were first satisfied, without regard to any other findings of guilt, that the appellant did the physical act alleged in the count they were considering; and

    (b)in deciding whether that act occurred deliberately and with a sexual motive and was therefore indecent.

15. Ground 4 alleges that a miscarriage of justice was occasioned because the jury were not directed that they could not use a finding of guilt on one or more of the four counts in the indictment in deciding whether the State had proved that the appellant was guilty of any one or more of the other three counts in the indictment.

16. On 1 May 2023, this court made orders, relevantly, as follows:

    (a)leave to appeal be granted on grounds of appeal 1, 2, 3 and 4;

    (b)the appeal be allowed;

    (c)the judgments of conviction on counts 1, 2, 3 and 4 in the indictment be set aside; and

    (d)there be a new trial of the appellant on counts 1, 2, 3 and 4.

17. These are our reasons for making those orders.

Overview of the State's case at trial

1. The State's case at trial was, in summary, as follows.

2. In or about August 2006 the appellant was living with ED at a house in a Perth suburb.  The appellant and ED were in a relationship.  ED is the older sister or step‑sister of JD, BK and KK.

3. In 2006, JD lived with the appellant and ED.  At the time JD was aged about 17.  JD, BK and KK had a very close relationship with the appellant and ED.  It was not unusual for the appellant to be affectionate with them 'in a brotherly way' (ts 510).  BK and KK would occasionally stay overnight at the appellant's home.

4. As to count 1, on a night between 21 August 2006 and 1 February 2007, the appellant and JD were watching television together on a couch in the lounge room of the appellant's home.  ED had gone to bed.  JD fell asleep on the couch.  She awoke to find the appellant touching her on the leg above her knee.  His hand was moving towards her vagina.  JD got up and went to her bedroom.

5. As to counts 2 and 3, on a night between 7 January 2007 and 9 January 2007, BK was at the appellant's home when she was aged 12 or 13.  The appellant and BK were watching television together on the couch in the lounge room.  After ED went to bed, the appellant told BK that he wanted to do something to her, but she had to promise not to tell ED and she had to be quiet.  The appellant then grabbed BK's foot and sucked her big toe (count 2).  This made BK feel uncomfortable.  She moved away from the appellant.  The appellant then told BK to sit next to him, which she did.  The appellant placed his hand on the inside of BK's right inner thigh, very close to her vagina (count 3).

6. As to count 4, when the charged incident occurred the appellant and ED were married and had moved to a house in another Perth suburb.  They had children of their own.  On an unknown date between 8 March 2012 and 9 September 2012, the appellant and KK were watching television together on a couch in the lounge room of the house.  The appellant began to tap KK's foot, which annoyed her.  KK asked the appellant to stop.  When the appellant did not stop, KK pretended to be asleep.  The appellant moved his hand up KK's leg until his hand was next to her pyjama shorts.  The appellant then placed his hand under KK's shorts and inserted his finger into her vagina.  KK stopped pretending to be asleep.  She got up and went into ED's bedroom, where she lay down on the floor next to ED's bed.

Overview of the appellant's case at trial

1. The appellant's case at trial was, in summary, as follows.

2. As to count 1, the appellant denied touching JD anywhere near her vagina or inner thigh.  The appellant had never touched JD in a sexual manner.

3. As to count 2, the charged incident did not occur.  Although the appellant would play jokes on the complainants and they would tickle each other and have fun together, he had never sucked BK's toe.  He had never touched BK in a sexual manner.

4. As to count 3, the appellant had never deliberately touched BK on her inner thigh.  Although he had put his arm around BK, when they were sitting on the couch together, the appellant had never touched her in a sexual manner.

5. As to count 4, there was an occasion when the appellant and KK were sitting on the couch together and she had her feet near his head.  He pushed her feet away but did not otherwise touch her.  The appellant certainly did not run his hand up KK's leg or penetrate her vagina with his finger.

6. The appellant gave evidence at the retrial.  He denied having committed any of the offences.  The appellant said that JD's allegation, the subject of count 1, was '[a]bsolute nonsense' (ts 694).  He denied making any sexual advances towards her.  The appellant denied BK's allegations the subject of counts 2 and 3.  The appellant gave evidence of an occasion on which he and KK had been on the couch and he had tapped KK on her feet, with the back of his hand, to get her to move over.  However, he denied touching her anywhere else.  In particular, he did not touch KK's upper thigh or under her shorts and he did not penetrate her vagina with his finger as alleged in count 4.

The State's application dated 16 March 2020 in the District Court proceedings in relation to propensity

1. By an application dated 16 March 2020 in the District Court proceedings, the State applied for an order that:

   In any trial on Indictment [XXX] of 2019 the counts on the indictment are cross admissible as to propensity.

2. By a consent order dated 16 March 2020 signed by a State prosecutor and the appellant's defence counsel, the appellant consented to the District Court making the order sought in the State's application dated 16 March 2020.

3. On 17 March 2020, Stone DCJ declined to make the order by consent and in effect required the State to make the application at a hearing.

The State's application at the original trial in relation to propensity

1. On 28 July 2021, after the close of the defence case at the original trial and before the commencement of closing addresses, the prosecutor referred to the State's application dated 16 March 2020 and informed His Honour that the application had in effect been adjourned for determination by the judge who presided at the trial (ts 385 ‑ 386).

2. The prosecutor then made, relevantly, these statements:

   (a)The State's position in relation to the application dated 16 March 2020 was that 'if the jury were to find [the appellant] guilty of any counts on the indictment … that conviction or those findings of guilt are cross-admissible as propensity evidence in respect of count 1, 2 and 3 in respect of the element of indecency' (ts 386).

   (b)Although the State would contend that a finding of guilt on any of the counts on the indictment would reveal a tendency by the appellant to be 'sexually interested in [ED]'s younger female siblings', the State only relies on that tendency in respect of determining 'whether any contact, should it be found by the jury, was indecent in regards to count 1, 2 and 3' (ts 387).

   (c)It would appear, on the majority of the evidence, that 'either the contact was not disputed but the nature of the conduct is disputed, although that differs in regards to the sucking of the [toe]' and, in respect of the nature of the contact, 'if the jury find [that the contact occurred], then the State says that the propensity evidence has work to do on the sexual motivation of [the appellant] as it relates to the element of indecency [on counts] 1, 2 and 3' (ts 387).

   (d)The work that the tendency evidence had to do and what the State relied upon was 'in respect of the element of indecency' and if the jury were to convict the appellant of count 1, count 2, count 3 or count 4 the finding of guilt would, having regard to 'the underlying facts and commonality between those counts', demonstrate 'a sexual interest in [ED]'s younger female siblings and that … is relevant in respect of determining whether the element of indecency [alleged in] count[s] 1, 2 and 3 is sexually motivated' (ts 387).

   (e)So, 'the State would narrow the application [dated 16 March 2020] to simply that aspect and of course the jury would need to be directed that they are not to use any propensity evidence in determining whether the actual conduct [alleged in each of count[s] 1, 2 and 3 and 4 occurred' (ts 387).

   (f)But if the jury do find 'independently in a separate trials direction sense that the conduct occurred or the assault occurred then [the jury] would be permitted, if they find [the appellant] guilty of counts 1, 2, 3 or 4 … [and they conclude that the appellant had the alleged tendency, to decide that the tendency made it] more likely that that touching or dealing or assault [was] indecent' (ts 387).

3. Sharp DCJ confirmed with the prosecutor that the State's contention was that 'where there is a guilty finding … the evidence [on that count] can be used in the other counts in respect of the indecency, not in respect of the actual touching', the subject of counts 1, 2 and 3 (ts 388).

4. Defence counsel did not take issue with the State's position (ts 388 ‑ 389).

5. Sharp DCJ said that, in view of defence counsel's acceptance of the appropriateness of the State's position, his Honour had 'no concerns about [the matter]' (ts 389).

Sharp DCJ's directions at the original trial in relation to propensity

1. Sharp DCJ gave the following relevant directions at the original trial in relation to propensity (ts 446 ‑ 448):

   I now need to give you a specific direction as to the use that may or may not be made of the evidence of one charge when you're considering the evidence relating to the other charge.

   Counsel for the State has submitted to you that a finding of guilt on one or more of the charges establishes that [the appellant] had a sexual interest in [ED]'s sisters, and it also establishes a propensity or tendency of [the appellant] to act on this by touching those girls in a sexual and indecent way when circumstances permit.

   A finding that [the appellant] is guilty on one or more of the charges may well establish a sexual interest or propensity or tendency as the State has submitted, but that's a matter for you.  There are, though, some directions I need to give you about this.

   First, if you find [the appellant] not guilty, i.e. you acquit him on a particular count, you cannot use the evidence you've heard about [the appellant]'s conduct in that charge when you're considering any other charge. If you found him not guilty, you must proceed on the basis that he is innocent of that charge.  So evidence of the specific act on a charge where you acquitted [the appellant] cannot be used by you when you're considering any other charge.

   However, if you're satisfied beyond reasonable doubt that [the appellant] is guilty of one or more of the charges, the evidence in relation to those charges may be relevant to the other charges and you are permitted to consider the evidence of any other charges on which you find [the appellant] guilty, along with all of the other evidence, to decide whether the State has proved the element of indecency in counts 1, 2 and 3 in the indictment beyond reasonable doubt.

   So if you find [the appellant] guilty on count 4, it would be open to you to conclude that the touching in counts 1, 2 and 3 was indecent and not just accidental or motivated by something other than indecency.  However, it's only open to you to come to that conclusion if you're satisfied that [the appellant] had a sexual interest in [ED]'s sisters and that [the appellant] had the sexual interest and tendency at the time of the specific act which is the subject of the remaining charge or charges that you are still considering.

   And I now need to give you some directions of law about how you can't use the evidence of the other charges on which you find [the appellant] guilty.  You can't use the evidence about any charge where you are satisfied beyond reasonable doubt of [the appellant]'s guilt in substitution of the offence relating to the other charge.

   In other words, proof to your satisfaction of guilt upon one charge must not lead you to automatically give a guilty verdict on any other charge.  You cannot say that because [the appellant] did one of the acts as charged, he is therefore guilty of what is alleged in some of the other charges.

   Ultimately for each charge or count what you have to decide on the whole of the evidence is whether or not the State has established beyond reasonable doubt that [the appellant] committed the specific act as alleged in that charge.  You cannot convict [the appellant] on any charge unless the State has satisfied you beyond reasonable doubt that he committed the specific act alleged against him in that charge.

2. Neither the prosecutor nor defence counsel sought any additional direction or any redirection from his Honour in relation to propensity (ts 458).

The trial judge's directions at the retrial in relation to propensity

1. The prosecutor who represented the State at the retrial was different from the prosecutor who represented the State at the original trial.  However, the appellant was represented at the retrial by the defence counsel who had appeared for him at the original trial.

1. As we have mentioned, the appellant gave evidence at the retrial.

2. On 2 February 2022, after the close of the defence case at the retrial and before the commencement of closing addresses, the trial judge informed the prosecutor and defence counsel that she 'wanted to touch base with [counsel] in terms of directions in relation to this matter' (ts 771).  Her Honour said that she had seen the directions that were given at the original trial.  Her Honour told the prosecutor and defence counsel that in her view 'the propensity ruling that was made by [Sharp DCJ] is appropriate, and [it is] appropriate that the same propensity directions be made' (ts 771).  The prosecutor said, in effect, that she agreed with her Honour (ts 771).  Defence counsel did not submit to the contrary (ts 774 ‑ 777).

3. In her closing address, the prosecutor made, relevantly, these submissions (ts 804 ‑ 805):

   [W]hat I want to turn to now is how ultimately, having heard all the evidence of the various witnesses, you can use the evidence in relation to each.  And her Honour will direct you in this regard.

   …

   [I]f you find the evidence for any one of the charges on the indictment proves beyond reasonable doubt that charge, bringing you to a conviction - a result of guilty, and you conclude that that evidence demonstrates [the appellant] had a willingness to act on a sexual interest on the younger female siblings of [ED], you can use that finding to assist you in determining whether the conduct in relation to [count 1, 2 or 3] was indecent.

   So you can't say, 'Because he did count 1, he did the acts of count 2', but you could find, if you found count 1, that it evidenced an interest, and a predilection, and a willingness to act in that way, … that would inform the question of whether the conduct alleged, if you find that it happened, was, in fact, indecent, if that assists.  Her Honour will direct you in detail about that matter.

   It goes all the way with all of those counts, and it's entirely for you.  I've used count 1 because it's just number 1.  But you can obviously decide what order you're going to deliberate upon.

   You could start with counts 4, 3, 2, 1. Any order that you find convenient on the indictment you start.  However you want to deliberate is a matter for you.

   If you found, for example, [the appellant] guilty of count 4, and you found a sexual interest in [KK], being a younger sibling of [ED], you can use the reasoning … in relation to sexual interest to inform you about the question of indecency on the other counts.

4. The trial judge gave the following relevant directions at the retrial in relation to propensity (ts 861 ‑ 862):

   I now need to give you a specific direction as to the use that may or may or not be made of the evidence of one charge when you're considering the evidence of another charge.

   Counsel for the State has submitted to you that a finding of guilt on one or more of the charges establishes that [the appellant] had a sexual interest in [ED]'s sisters, and it also establishes a propensity, or tendency of [the appellant] to act on that sexual interest by touching those girls in a sexual and indecent way when the circumstances permitted, namely in the lounge room of the relevant home in which he was living at night-time when [ED] had gone to bed.

   A finding that [the appellant] is guilty on one or more of the charges may well establish a sexual interest, or propensity, or tendency as the State has submitted.  That is a matter for you.  There are though some directions I need to give you about this.

   First, if you find [the appellant] not guilty of a charge, if you acquit him on a particular count, you can't use the evidence that you've heard about his conduct in relation to that charge when you are considering any other charge.  Makes sense.  If you acquit, you're not satisfied.  You can't use that in any way when you're considering anyone else's counts.

   If you find him not guilty, you must proceed on the basis that he's innocent of that charge.  So evidence of the specific act on a charge where you have acquitted cannot be used when you are considering any other charge.

   However, if you are satisfied beyond reasonable doubt that [the appellant] is guilty of one or more [of] the charges, the evidence in relation to those charges may be relevant to the other charges.

   And you are permitted to consider the evidence of any other charges on which you find him guilty along with all of the other evidence to decide whether the State has proved the element of indecency in relation to counts 1, 2 and 3 in the indictment beyond reasonable doubt.

   So if you were to find him guilty on count 4, it would be open for you to conclude that the touching on counts 1, 2 and 3 was indecent.  And in relation to counts 1, 2 and 3, if you found him guilty of those, you can use them when considering the other of counts 1, 2 and 3.  So it's on that issue of indecency that you can use the propensity that's alleged.

   And that the touching was not accidental, or motivated … by something other than indecency.  It's only open to you to come to that conclusion if you're satisfied that [the appellant] had a sexual interest in [ED]'s sisters, and that he had the sexual interest and the tendency at the time of the specific act which is the subject of the remaining charge or charges that you're still considering.

   Now, I need to give you some directions of law about how you can't use the evidence of the other charges on which you find [the appellant] guilty.  You can't use the evidence about any charge where you are satisfied beyond reasonable doubt of his guilt in … substitution of the evidence relating to the other charge.

   In other words, proof to your satisfaction of guilt on one charge must not lead you automatically to give a guilty verdict on any other charge.  You cannot say that because [the appellant] did one of the acts as charged, he's therefore guilty of what's alleged in one of the other charges.

   Ultimately for each charge or count, what you have to decide on the whole of the evidence is whether or not the State has established beyond reasonable doubt that [the appellant] committed the specific act as alleged in that charge.

   You cannot convict [the appellant] on any charge unless the State has satisfied you beyond reasonable doubt that he committed the specific act charged against him in that charge.

5. Neither the prosecutor nor defence counsel sought any additional direction or any redirection from her Honour in relation to propensity (ts 869 ‑ 870).

Counsel for the appellant's submissions

1. As to ground 1, counsel for the appellant referred to this passage in the trial judge's summing up (ts 861):

   Counsel for the State submitted … that a finding of guilt on one or more of the charges establishes that [the appellant] had a sexual interest in [ED]'s sisters, and it also establishes a propensity, or tendency of [the appellant] to act on that sexual interest by touching those girls in a sexual and indecent way when the circumstances permitted, namely in the lounge room of the relevant home in which he was living at night-time when [ED] had gone to bed.  (emphasis added)

2. It was submitted that a finding of guilt in relation to one of the counts was not capable of establishing that the appellant had 'a sexual interest in [ED]'s sisters'.  In particular, it was submitted that if the appellant had indecently assaulted or dealt with, or had sexually penetrated, one of ED's sisters then, without more, that could not logically provide a sufficient basis on which to conclude that the appellant had a sexual interest in any other of ED's sisters.  It was also submitted that, even if the appellant had offended against two of ED's sisters, that of itself could not form a logical basis on which to conclude that the appellant had a sexual interest in another sister.  Counsel emphasised that there was no evidence that the appellant was sexually attracted to any of the complainants because they were ED's sister or step‑sisters, and it was never suggested that there was some other factor (for example, a physical feature in common as a result of their relatedness) that could support such a conclusion.

3. Counsel acknowledged that two of the complainants were children.  However, it was submitted that the trial judge's directions to the jury did not at any stage suggest that the alleged sexual interest had anything to do with the fact that they were children.  The alleged sexual interest was described at a significantly higher level of generality, namely a 'sexual interest in [ED]'s sisters' which, it was submitted, could not properly be described as 'unusual'.  It was submitted that a sexual interest in 'one or more' of ED's sisters, even if established, was not significantly probative of whether the appellant's behaviour towards another complainant was indecent.

4. Counsel submitted that the trial judge erred in directing the jury that it was open to them to take into account a finding of guilt in relation to one or more of the counts.  It was contended that one finding of guilt, or even more than one finding of guilt, was not logically capable of supporting a conclusion that the appellant had a sexual interest in ED's sisters.  Further, it was contended that even if it were open to the jury to conclude that the appellant had a sexual interest in ED's sisters, that interest was not significantly probative of whether his behaviour towards another complainant was indecent.

5. It was submitted that her Honour's directions were erroneous; alternatively, those directions occasioned a miscarriage of justice.  It was submitted that, on the basis of count 1, the judgments of conviction for counts 1, 2 and 3 should be set aside and a retrial on those counts ordered.

6. As to ground 2, counsel for the appellant noted that the trial judge directed the jury that it was the State's case that a finding of guilt on one or more of the counts established that the appellant had 'a propensity or tendency … to act on [a sexual interest in ED's sisters] by touching those girls in a sexual and indecent way when the circumstances permitted, namely in the lounge room of the relevant home in which he was living at night‑time when [ED] had gone to bed' (ts 861).

7. It was submitted that this was never part of the State's case. Further, it was submitted that her Honour's direction as to the State's case was inconsistent with the prosecutor's application at the original trial before Sharp DCJ and was inconsistent with the ruling his Honour made on 28 July 2021. See [33] ‑ [37] above.

8. Counsel contended that, upon a fair reading of the prosecutor's closing address as a whole at the retrial (and having regard to the statements made by the prosecutor to Sharp DCJ at the original trial), the State's case was that findings of guilt could only be used by the jury to conclude that the appellant had a sexual interest in ED's sisters (ts 804 ‑ 805).

9. It was submitted that although, on two occasions during her closing address, the prosecutor referred to the appellant's willingness to act on that sexual interest, ultimately the prosecutor indicated to the jury (by using an example) that the State's case on propensity was concerned only with the appellant's alleged sexual interest in ED's sisters.  It was also submitted that the prosecutor never suggested that it was part of the State's case on propensity that the appellant had a tendency to act on his alleged sexual interest in ED's sisters, and certainly not in the way in which the trial judge directed the jury, by reference to 'when the circumstances permitted, namely in the lounge room of the relevant home in which he was living at night‑time when [ED] had gone to bed' (ts 861).

10. Counsel contended that, by directing the jury in terms that departed significantly from the State's case, the trial judge erred and a miscarriage of justice was occasioned.  It was contended that, on the basis of ground 2, all of the judgments of conviction should be set aside and a new trial on all of the counts should be ordered.

11. As to ground 3, counsel for the appellant confirmed that ground 3 proceeded on the assumption that, contrary to the appellant's primary position, findings of guilt in relation to any of the counts were properly available for use by the jury in deciding whether the acts the subject of counts 1, 2 and 3 were indecent.

12. It was submitted that the trial judge did not give the jury any directions that specifically and clearly instructed them that they could not use any findings of guilt (or the evidence underpinning those findings) in deciding whether the State had proved beyond reasonable doubt that the acts the subject of any of counts 1, 2 and 3 had occurred.  It was also submitted that the jury were not directed that they had to be satisfied that a relevant charged act occurred without having any regard to evidence that related to any other charged act, and without regard to any sexual interest, or propensity or tendency, that they found proved.

13. Counsel contended that there was an appreciable risk that the jury may have impermissibly used findings of guilt (and any evidence underpinning those findings) on one or more of the counts as evidence that the appellant had in fact done one or more of the acts alleged in counts 1, 2 and 3.

14. It was submitted that, in the absence of directions that made it clear that the jury were not permitted to have regard to any findings of guilt in deciding whether the appellant had done the acts the subject of other counts, a miscarriage of justice was occasioned.  It was submitted that, on the basis of ground 3, the judgments of conviction on all of the counts should be set aside and a new trial on all of the counts should be ordered.

15. As to ground 4, counsel for the appellant noted that the jury were specifically directed that they were 'permitted' to use any one or more findings of guilt, and the evidence underpinning those findings, in determining whether the State had proved the element of indecency in relation to counts 1, 2 and 3.  Counsel also noted that the jury were specifically directed that 'it's on that issue of indecency that you can use the propensity that's alleged' (ts 861 ‑ 862).

16. It was submitted, however, that the jury were not specifically directed that they could not use a finding of guilt on one or more of the counts in determining whether the appellant had committed any of the other counts.

17. When the prosecutor sought the ruling from Sharp DCJ at the original trial, the prosecutor expressly disavowed reliance upon any findings of guilt being available for use by the jury in deciding whether the appellant had engaged in the conduct alleged in any of the other counts.  The prosecutor at the retrial did not depart from that position.

18. It was submitted that, in the circumstances, the trial judge was obliged to ensure that the jury clearly understood that they were not permitted to use any findings of guilt to determine whether the appellant had engaged in the conduct alleged in any of the other counts.

19. Counsel contended that, in the absence of a clear direction from the trial judge that findings of guilt were not available for use in this manner, there was a real and not insignificant risk that the jury might erroneously reason that a finding that the appellant had a propensity or tendency to act on the alleged sexual interest could be used in deciding whether the acts alleged in any of the counts occurred, contrary to the appellant's denials.

20. It was submitted that, in the circumstances, a miscarriage of justice was occasioned.  It was also submitted that, on the basis of ground 4, all of the judgments of conviction should be set aside and a new trial on all of the counts should be ordered.

Counsel for the State's submissions

1. As to ground 1, counsel for the State submitted:

   (a)The prosecutor did not assert during the trial before Sharp DCJ that the appellant was sexually attracted to any of the complainants because they were ED's sisters or half‑sisters.

   (b)When read in context it is apparent that the prosecutor at the original trial was referring to ED's younger siblings as representative of a class of persons.

   (c)The appellant's sexual interest in that class manifested in the material unity of circumstances, being that all of the charged conduct was alleged to have occurred:

   (i)in the lounge room;

   (ii)while the appellant was alone with one of the complainants;

   (iii)late at night; and

   (iv)involved an initial touching on the leg followed by touching towards the vagina.

   (d)That factual similarity, as between each of the counts, was plainly obvious to the jury and to the parties at the original trial and at the retrial.

2. Counsel accepted that the prosecutor at the original trial narrowed the State's use of that propensity evidence to proof of the element of indecency in counts 1, 2 and 3.  It was submitted that, having regard to the issues that remained joined at the retrial, a finding of guilt on any of the counts was capable of establishing that the appellant had a sexual interest in ED's younger siblings which found expression in the circumstances set out by the trial judge in her directions.

3. It was submitted that it was open to the State to rely upon any findings of guilt on counts 1, 2, 3 or 4 in aid of the proof of the physical elements in counts 1, 2 and 3, and not merely whether any such conduct (if proved independently) was indecent.

4. Counsel contended that whether the trial judge's directions were inconsistent with the State's case and, if so, whether the inconsistent directions produced a miscarriage of justice, was the subject of ground 2.  However, it was contended that ground 1 proceeds at a level of abstraction which suggests that the cross‑admissible evidence at the retrial was incapable of being significantly probative of the element of indecency.

5. Counsel for the State responded that any finding of guilt on any of counts 1, 2, 3 or 4 was significantly probative of:

   (a)whether it was more likely that the charged conduct alleged in counts 1, 2 and 3 actually occurred; and

   (b)the element of indecency in relation to that alleged conduct.

   Counsel accepted that the State had 'limited its position to the latter'.

6. As to ground 2, counsel for the State submitted that the trial judge's impugned direction was not erroneous and did not occasion a miscarriage of justice.

7. Counsel advanced the following arguments in support of that conclusion:

   (a)There was no 'disconnect' between the prosecutor's submissions in her closing address, on the one hand, and the trial judge's directions, on the other.  The prosecutor's submissions as to cross‑admissibility followed her detailed summary of all of the evidence relevant to each of the complainants.  It would have been obvious to the jury that there was 'material unity as to the factual circumstances surrounding the allegations'.  Further, the prosecutor told the jury in relation to cross‑admissibility that her Honour would direct the jury on that issue (ts 804) and would direct the jury 'in detail about that matter' (ts 805).  The State's position, as stated by the prosecutor in closing, was not exhaustive on the issue of cross‑admissibility, but made the jury aware that it was a matter on which her Honour would expressly direct the jury in detail.

   (b)Her Honour had already and repeatedly established that there was no objection to her directing the jury on cross‑admissibility consistently with the directions on that issue given by Sharp DCJ at the original trial.  It was therefore plain to the parties at the retrial that her Honour would proceed on that basis.  Indeed, her Honour's directions more clearly confined the use of the propensity evidence to the resolution of the issue of indecency than Sharp DCJ's directions did.

   (c)Defence counsel did not seek any additional direction or any redirection from her Honour in relation to propensity.

   (d)The retrial was run substantially in the same manner as the original trial. The appellant knew the case he had to meet, the evidence that would be adduced and the directions that would be given to the jury. The appellant would not have run his case at the retrial differently had the prosecutor put the State's case on propensity in precisely the same manner as her Honour. See the extract from her Honour's summing up at [46] above.

   (e)Having regard to the manner in which the State's case and the appellant's case were run at the retrial, the issues in dispute and (on counsel for the State's contention) that count 4 was excluded from this line of reasoning, it is inconceivable that the jury would have construed her Honour's directions as suggesting that propensity could be used to prove the commission of the physical acts the subject of counts 1, 2, 3 and 4.

   (f)As a matter of law, the directions given by the trial judge (and by Sharp DCJ), to the extent that the trial judge (and Sharp DCJ) told the jury that the State had submitted that the appellant had a sexual interest in ED's younger siblings that manifested itself by touching them, as the circumstances permitted, was not erroneous.  The trial judge (and Sharp DCJ) consistently with the State's position, narrowed the use to which the propensity evidence could be put to the element of indecency.  Although the trial judge did not articulate the sexual interest entirely consistently with the 'express terms of the State's closing address', her Honour confined the use to which such evidence could be put in terms consistent with the State's case.

1. As to ground 3, counsel for the State emphasised that there was a distinction 'between the articulation of the propensity and the use to which that propensity was put'.

2. It was submitted that the trial judge directed the jury that:

   (a)they were permitted to consider the evidence of any other count upon which they found the appellant guilty in proving the element of indecency in relation to counts 1, 2 and 3;

   (b)if the jury found the appellant guilty of count 4, it would be open for the jury to conclude that the touching the subject of counts 1, 2 and 3 was indecent;

   (c)if the jury found the appellant guilty of any of counts 1, 2 or 3, it was on the issue of indecency that they could use the propensity that was alleged; and

   (d)it was open to the jury in that respect to consider such evidence in determining that the touching was not accidental, or motivated by something other than indecency.

3. Counsel contended that, in the circumstances, it was clear both from the prosecutor's closing address and from her Honour's directions that any finding of guilt on any of the counts was, on the State's case, only adduced in proof of the issue of indecency in counts 1, 2 and 3.

4. It was submitted that, while it was correct that the jury was not expressly told that the jury could not use findings of guilt on other counts in proof of whether the conduct elements in counts 1, 2 or 3 were satisfied, the State did not articulate its case and her Honour did not direct the jury in that manner.  It was submitted that, in the circumstances, it would have been clear to the jury that they were not permitted to reason in that manner.

5. Counsel contended that ground 3 proceeded upon 'an unduly narrow interpretation' of the trial judge's directions to the jury.  It was contended that when her Honour's summing up is read as a whole, no miscarriage of justice is apparent.

6. As to ground 4, counsel for the State submitted that the substance of ground 4 materially overlapped with ground 3.  It was submitted that the only point of distinction between grounds 3 and 4 appears to be that the alleged error is claimed to affect all counts (including count 4) as distinct from only counts 1, 2 and 3.

7. Counsel repeated the submissions made, in the context of ground 3, in relation to the appellant's complaint that the alleged error affected counts 1, 2 and 3.

8. Counsel contended that when the trial judge's directions were construed in the manner asserted by the State, those directions could not have affected the jury's decision making on count 4.  It was noted that indecency was not an element of count 4.  Her Honour addressed the element of indecency in directing the jury on counts 1, 2 and 3.  It would have been obvious to the jury that indecency was not an element of count 4.  Her Honour properly explained to the jury the elements of count 4.  'Indecency' formed no part of her Honour's directions on count 4.

9. It was submitted that the trial judge's impugned directions did not suggest that any finding of guilt on any of the counts could bear upon the jury's decision making on count 4.  Further, her Honour's directions could not have had that impact because indecency was not an element of count 4 and the use of the evidence had been confined to use in relation to indecency.  No miscarriage of justice, as alleged in ground 4, had occurred.

10. Finally, counsel for the State submitted that:

    (a)If the appeal were to be allowed on any of grounds 1, 2 and 3 (but not ground 4), the judgments of conviction on counts 1, 2 and 3 should be set aside, but the judgment of conviction on count 4 should not be disturbed.

    (b)If any of grounds 1, 2 and 3 were to be established, the State did not contend that the proviso could be applied.

The grounds of appeal: relevant legal principles

1. In s 31A(1) of the Evidence Act 1906 (WA), the term 'propensity evidence' is defined to mean:

   (a)similar fact evidence or other evidence of the conduct of the accused person; or

   (b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had.

2. Section 31A(2) states, relevantly, that propensity evidence is admissible in proceedings for an offence if the court considers:

   (a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value (s 31A(2)(a)); and

   (b)that the probative value of the evidence, compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial (s 31A(2)(b)).

3. In RMD v The State of Western Australia,[1] Beech JA summarised various principles, enunciated in the case law, that are relevant in determining whether propensity evidence has significant probative value within s 31A(2)(a), as follows:

   [1] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185]. See also RMD [50] ‑ [52] (Buss P); La Bianca v The State of Western Australia [2019] WASCA 105 [24] ‑ [26] (Buss P & Mazza JA), [144] (Mitchell JA); Lilley v The State of Western Australia [2019] WASCA 164 [59] (Buss P, Mazza & Beech JJA).

   (1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.

   (2)In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.

(3)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue.

(4)The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.

(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.

(6)If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.

(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence.  The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.

(8)The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value.  (footnotes omitted)

1. In The State of Western Australia v Jackson,[2] Buss P, Mitchell and Beech JJA made these observations concerning the determination of whether propensity evidence has significant probative value within s 31A(2)(a):

   First, the term 'propensity evidence', as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence … of a tendency that the accused person has or had'. The word 'conduct', in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.

   Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:

   (a)the evidence is capable of proving the propensity; and

   (b)proof of the propensity increases the likelihood of the commission of the offences.

   Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'.  For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.

   Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value.  (footnotes omitted)

   [2] The State of Western Australia v Jackson [2019] WASCA 118 [20] ‑ [23].

2. In Jackson [52] - [53], the court also said:

   (a)An enquiry as to whether propensity evidence has significant probative value begins with the identification of the fact or facts in issue to which the propensity evidence is allegedly relevant.

   (b)Whether propensity evidence has significant probative value depends upon the nature of the fact or facts in issue to which it is allegedly relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.

   (c)If propensity evidence is allegedly relevant to more than one fact in issue, the evaluation of the probative value of the propensity evidence must be carried out separately in relation to each fact in issue.

   (d)The probative value of propensity evidence in relation to one fact in issue may differ from its probative value in relation to another fact in issue.  It is appropriate to assess the different value of propensity evidence in relation to different facts in issue in deciding whether, having regard to the nature and significance of those facts in issue, the propensity evidence has significant probative value, either generally or for a specific or limited purpose, at the trial of the relevant offence or offences.

3. In The State of Western Australia v JHN,[3] Buss P, Mazza & Vaughan JJA made these points:

   (a)The question of whether propensity evidence has significant probative value can only have one correct answer, although reasonable minds may sometimes differ as to the answer.  An appellate court must determine for itself whether propensity evidence possesses significant probative value as distinct from merely determining whether it was open to the primary judge to arrive at his or her conclusion.  See R v Bauer (A Pseudonym).[4]

   (b)Propensity evidence will have probative force if it increases the probability that the accused committed the charged acts, including by the capacity of the propensity evidence to support the credibility of a State witness's account of the charged acts.  See RMD [52] (Buss P).

   (c)The concept of propensity evidence and whether propensity evidence has significant probative value must not be undertaken by focusing on each item of propensity evidence separately and without regard to the relevant context; namely, the fact or facts in issue at the trial and the other evidence (including the other propensity evidence) adduced or to be adduced at the trial.  See Lilley [61].

   (d)Section 31A substantially altered the common law. Propensity evidence is admissible under s 31A if the court considers that the test under each of the first and second limbs of s 31A(2) is satisfied. See Dair v The State of Western Australia.[5]

   [3] The State of Western Australia v JHN [2021] WASCA 225 [118].

   [4] R v Bauer (A Pseudonym) [2018] HCA 40; (2018) 266 CLR 56 [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).

   [5] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [59] (Steytler P).

4. Where evidence is admissible for one purpose but inadmissible for other purposes, and there is a perceptible risk that, without a judicial direction, the jury may use the evidence for an impermissible purpose, the trial judge is bound to direct the jury as to the purpose for which the evidence may be used and the purposes for which the evidence must not be used.  See LNV v The State of Western Australia;[6] Hill v The State of Western Australia;[7] LNN v The State of Western Australia;[8] JPH v The State of Western Australia.[9]

   [6] LNV v The State of Western Australia [2019] WASCA 180 [78] (Buss P & Sofronoff AJA), [103] (Beech JA).

   [7] Hill v The State of Western Australia [2019] WASCA 209 [70] ‑ [76] (Buss P & Mazza JA).

   [8] LNN v The State of Western Australia [2021] WASCA 39 [177] (Buss P, Mitchell & Vaughan JJA).

   [9] JPH v The State of Western Australia [2022] WASCA 99 [45] (Buss P & Vaughan JA).

5. The risk of a jury engaging in impermissible propensity or tendency reasoning has been recognised as 'peculiarly strong' in cases involving alleged sex offences.  See De Jesus v The Queen;[10] Hamilton (a pseudonym) v The Queen.[11]

   [10] De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1, 3 (Gibbs CJ).

   [11] Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 394 ALR 194 [43] (Kiefel CJ, Keane & Steward JJ), [62] (Edelman & Gleeson JJ).

The grounds of appeal: their merits

1. Count 1 alleged that on a date unknown between 21 August 2006 and 1 February 2007 the appellant unlawfully and indecently assaulted JD, contrary to s 324(1) of the Code. Section 324(1) provides, relevantly, that a person who unlawfully and indecently assaults another person is guilty of a crime. At the time of the alleged offending JD was aged about 17.

2. The relevant issues at the retrial in respect of count 1 were:

   (a)whether the appellant had touched JD on her leg above her knee and whether his hand was moving towards her vagina; and

   (b)if so, whether that action was indecent.

   The State carried the burden of proving those matters beyond reasonable doubt.

3. Counts 2 and 3 alleged that on a date unknown between 7 January 2007 and 9 January 2009 the appellant indecently dealt with BK, a child of or over the age of 13 years and under the age of 16 years, by sucking her toe (count 2) and by touching her on the inner thigh (count 3), contrary to s 321(4) of the Code. Section 321(4) provides, relevantly, that a person who indecently deals with a child is guilty of a crime. BK gave evidence that, at the time of the alleged offending, she was aged 12 or 13. However, the appellant made an admission pursuant to s 32 of the Evidence Act that at the material time BK was of or over the age of 13 years and under the age of 16 years.

4. The relevant issues at the retrial in respect of counts 2 and 3 were:

   (a)whether the appellant sucked BK's toe and, if so, whether that action was indecent (count 2); and

   (b)whether the appellant touched BK on the inner thigh and, if so, whether that action was indecent (count 3).

   The State carried the burden of proving those matters beyond reasonable doubt.

5. Count 4 alleged that on a date unknown between 8 March 2012 and 9 September 2012 the appellant sexually penetrated KK, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his finger, contrary to s 321(2) of the Code. Section 321(2) provides, relevantly, that a person who sexually penetrates a child is guilty of a crime. At the time of the alleged offending KK was aged about 13. However, the appellant made an admission pursuant to s 32 of the Evidence Act that at the material time KK was of or over the age of 13 years and under the age of 16 years.

6. The relevant issue at the retrial in respect of count 4 was whether the appellant had penetrated KK's vagina with his finger.  The State carried the burden of proving that matter beyond reasonable doubt.

7. Indecency was an element of the offence charged in each of counts 1, 2 and 3, but was not an element of the offence charged in count 4.

8. The concept of 'indecency', in the context of the expression 'indecently assaults' in s 324(1) and the expression 'indecently deals with' in s 321(4), connotes that the assault or the dealing is of a sexual character. See Drago v The Queen;[12] HTD v The State of Western Australia (No 2).[13]

   [12] Drago v The Queen (1992) 8 WAR 448, 492 ‑ 493 (Nicholson J; Wallwork & Murray JJ agreeing).

   [13] HTD v The State of Western Australia (No 2) [2019] WASCA 39 [19] (Buss P).

9. At the hearing of the appeal, counsel for the State conceded (correctly, in our opinion) that at the retrial the State was bound by the basis on which the prosecutor at the original trial sought to rely upon propensity or tendency evidence (appeal ts 34).

10. At the original trial the State sought, in effect, to rely upon propensity or tendency evidence as follows:

    (a)The State alleged that if the jury found the appellant guilty of any count, then that finding of guilt would reveal a tendency by the appellant to be 'sexually interested in [ED]'s younger female siblings' (ts 387).

    (b)The State only relied upon that alleged tendency if the alleged tendency was revealed by a finding of guilt on any count (ts 387).

    (c)If the alleged tendency was revealed by a finding of guilt on any count, then the State relied upon the tendency solely for the purpose of the jury determining whether any charged physical conduct, the subject of counts 1, 2 and 3, which the jury was satisfied having regard to other evidence had occurred, was indecent (ts 387).

    (d)In other words, the State's case was that if the jury found the appellant guilty of any count and the jury were satisfied that the finding of guilt revealed a tendency by the appellant to be 'sexually interested in [ED]'s younger female siblings', then the evidence supporting that finding of guilt was admissible as propensity evidence in respect of the remaining counts which alleged that the appellant had indecently dealt with a complainant (that is, counts 1, 2 and 3), but only on the element of indecency (ts 387).

11. At the original trial the State disavowed any reliance upon propensity or tendency evidence for the purpose of the jury determining whether any charged physical conduct, the subject of counts 1, 2, 3 and 4, had occurred.

12. At the retrial, the State was bound by the manner in which the prosecutor at the original trial had sought to rely upon propensity or tendency evidence, as set out at [100] above, and was also bound by the prosecutor's disavowal, as set out at [101] above.

13. The prosecutor submitted to the jury in her closing address at the retrial, relevantly and in effect, that if:

    (a)the jury were satisfied beyond reasonable doubt that the appellant was guilty of one of the charges;

    (b)the jury concluded that the evidence in relation to that charge demonstrated that the appellant had a sexual interest in ED's younger sisters; and

    (c)the jury concluded that the appellant was willing to act on that sexual interest,

    the jury could use those conclusions in deciding whether any charged physical conduct, the subject of counts 1, 2 and 3, which the jury was satisfied having regard to other evidence had occurred, was indecent (ts 804 ‑ 805).

14. The prosecutor then gave the jury this example:

    If you found, for example, [the appellant] guilty of count 4 [in relation to KK], and you found [that the appellant had] a sexual interest in [KK] …, you can use the reasoning … in relation to sexual interest to inform you about the question of indecency on the other counts (ts 805).

1. The prosecutor told the jury that her Honour would give the jury directions in relation to the matter (ts 804 ‑ 805).

2. The trial judge directed the jury, relevantly and in effect, that:

   (a)The prosecutor had submitted that 'a finding of guilt on one or more of the charges establishes that [the appellant] had a sexual interest in [ED]'s sisters' (ts 861).

   (b)The prosecutor had submitted that a finding of guilt on one or more of the charges also establishes 'a propensity, or tendency of [the appellant] to act on that sexual interest by touching those girls in a sexual and indecent way when the circumstances permitted, namely in the lounge room of the relevant home in which he was living at night‑time when [ED] had gone to bed' (ts 861).

   (c)A finding that '[the appellant] is guilty on one or more of the charges may well establish a sexual interest, or propensity, or tendency as the State has submitted', but that was 'a matter for [the jury]' (ts 861).

   (d)If the jury were satisfied beyond reasonable doubt that the appellant was guilty of one or more of the charges, the jury could consider the evidence in relation to that charge or those charges, together with all of the other relevant evidence, in deciding whether the State had proved the element of indecency in relation to counts 1, 2 and 3 beyond reasonable doubt (ts 861).

   (e)So, if the jury were to find the appellant guilty on count 4, 'it would be open for [the jury] to conclude that the touching on counts 1, 2 and 3 was indecent' (ts 861).  As to counts 1, 2 and 3, 'if [the jury] found [the appellant] guilty of [any of] those, [the jury could] use them when considering the other[s] of counts 1, 2 and 3' (ts 861 ‑ 862).  It was on the issue of indecency, including whether 'the touching was not accidental or motivated … by something other than indecency', that the jury could use the propensity alleged by the State (ts 862).

   (f)If the jury were satisfied beyond reasonable doubt that the appellant was guilty of one or more of the charges, the jury could only use the evidence in relation to that charge or those charges in considering the element of indecency on one or more of counts 1, 2 and 3 if the jury were satisfied that '[the appellant] had a sexual interest in [ED]'s sisters, and that he had the sexual interest and the tendency at the time of the specific act which is the subject of the remaining charge or charges that [the jury were] still considering' (ts 862).

   (g)If the jury were satisfied beyond reasonable doubt that the appellant was guilty of one or more of the charges, the jury could not use the evidence in relation to that charge or those charges in substitution for the evidence relating to any other charge (ts 862).

   (h)If the jury were satisfied beyond reasonable doubt that the appellant was guilty of one or more of the charges, that finding of guilt 'must not lead [the jury] automatically to [return] a guilty verdict on any other charge' (ts 862).

   (i)Ultimately, for each charge, the jury had to decide on the whole of the evidence whether or not the State had established beyond reasonable doubt that the appellant had committed the specific act as alleged in that charge (ts 862).

   (j)The jury could not convict the appellant of any charge unless the State satisfied the jury beyond reasonable doubt that the appellant had committed the specific act as alleged in that charge (ts 862).

3. Her Honour's impugned directions to the jury must be considered by taking the directions (and the summing up) as a whole.  They must be considered from the perspective of a jury listening to those directions (and the summing up) as a whole and how the jury might understand them, and not upon a subtle examination of the transcript or by giving undue prominence to any individual parts.  See R v Dookheea.[14]

   [14] R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle & Edelman JJ).

4. Ground 1 asserts, relevantly and in effect, that the trial judge misdirected the jury that it was open to the jury to use a finding of guilt on one or more of the counts in deciding whether the State had proved the element of indecency in relation to counts 1, 2 and 3.  In particular, counsel for the appellant submitted that a finding of guilt in relation to one or even two of the complainants was incapable of establishing that the appellant had 'a sexual interest in [ED]'s sisters'.

5. The State's case in relation to propensity, within the framework of s 31A of the Evidence Act, included the contention that if the jury were satisfied beyond reasonable doubt of the appellant's guilt on one of the charged offences, then the evidence as to that offending was evidence of an alleged tendency that the appellant had to be 'sexually interested in [ED]'s younger female siblings'. See the prosecutor's statements at the original trial before Sharp DCJ (ts 387). See also the definition of 'propensity evidence' in s 31A(1).

6. The State's case in relation to propensity, within the framework of s 31A, also included the contention that if the jury were satisfied beyond reasonable doubt of the appellant's guilt on one of the charged offences and the jury concluded that the evidence as to that offending established that the appellant had the alleged tendency to be 'sexually interested in [ED]'s younger female siblings' and a willingness to act on that sexual interest, then:

   (a)the evidence of that tendency had significant probative value in determining whether any charged physical conduct, the subject of counts 1, 2 and 3, which the jury was satisfied having regard to other evidence had occurred, was indecent (s 31A(2)(a)); and

   (b)the probative value of the evidence of that tendency, compared to the degree of risk of an unfair trial, was such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial (s 31A(2)(b)).

   See the prosecutor's statements at the original trial before Sharp DCJ (ts 387).

7. A feature of the State's case in relation to propensity was the high level of specificity and the confined nature of the alleged tendency.  In particular, it was an alleged tendency to be sexually interested in ED's younger female siblings and not, for example, an alleged tendency to be sexually interested in young teenage girls generally.  It was unnecessary, in our opinion, for the State to particularise the tendency at the high level of specificity and in the confined nature that it did.  However, that was the manner in which the State chose to run its case against the appellant and the State is bound by it.

8. A critical aspect of her Honour's directions in relation to propensity was that:

   (a)if the jury were satisfied beyond reasonable doubt that the appellant was guilty of one count only; and

   (b)if, on the basis of the evidence on that count, the jury were satisfied that the appellant had the alleged tendency and a willingness to act on the alleged tendency in the manner explained by her Honour,

   then the jury were entitled to consider the evidence in relation to that count, together with all other relevant evidence, in deciding whether the State had proved beyond reasonable doubt the element of indecency in relation to counts 1, 2 and 3 (or such of those counts as were not the subject of the finding of guilt).

9. The offending the subject of count 1, namely the appellant's alleged unlawful and indecent assault of JD by touching her on the upper thigh, occurred on a date unknown between 21 August 2006 and 1 February 2007.  The offending the subject of count 2, namely the appellant's alleged indecent dealing with BK by sucking her toe, occurred on a date unknown between 7 January 2007 and 9 January 2009.  The offending the subject of count 3, namely the appellant's alleged indecent dealing with BK by touching her inner thigh, occurred on the same date as and immediately before the offending the subject of count 2.  The offending the subject of count 4, namely the appellant's alleged sexual penetration of KK's vagina with his finger, occurred on a date unknown between 8 March 2012 and 9 September 2012.

10. The State did not contend at the trial that the appellant had 'a sexual interest in [ED]'s younger female siblings' merely because the complainants were ED's sisters or step‑sisters.  Also, the State did not contend at the trial that the complainants had a common feature which supported the proposition that a sexual interest in one of the complainants may have indicated a sexual interest in all of the complainants.  Further, the State relied solely upon the jury finding the appellant guilty of one or more of the counts and the evidence that supported the finding or findings of guilt as the basis for the appellant's alleged tendency to be sexually interested in ED's younger female siblings and a willingness to act on the alleged tendency.

11. In our opinion, a finding of guilt solely in relation to count 2, namely that the appellant sucked BK's toe on a date unknown between 7 January 2007 and 9 January 2009, was not of itself logically capable of establishing that the appellant had a sexual interest in the other complainants (that is, JD and KK) when the alleged offending against the other complainants occurred.

12. The sucking of BK's toe, viewed in isolation from count 3, was at least bizarre and highly inappropriate.  Whether the appellant's action in sucking BK's toe was indecent would no doubt have been informed by any findings by the jury that were adverse to the appellant in relation to count 3, which alleged that the appellant placed his hand on the inside of BK's right inner thigh, very close to her vagina.  Counts 2 and 3 concern the same complainant and allegedly occurred during a single episode.

13. However, her Honour directed the jury in effect that it was open to the jury to conclude, on the basis of a finding of guilt solely in relation to count 2, that the appellant had a sexual interest in the other complainants (that is, JD and KK).  Her Honour also directed the jury in effect that if the jury concluded, on the basis of a finding of guilt solely in relation to count 2, that the appellant had a sexual interest in the other complainants (that is, JD and KK) and a willingness to act on that sexual interest in the manner explained by her Honour, the jury could use the finding of guilt solely in relation to count 2 in determining whether the State had proved the element of indecency in relation to counts 1 and 3, including in determining whether the State had negatived any suggestion that any touching by the appellant the subject of counts 1 and 3 was accidental or not of a sexual character.

14. We are satisfied that if, as we have decided, a finding of guilt solely in relation to count 2 was not of itself logically capable of establishing that the appellant had a sexual interest in the other complainants when the alleged offending against the other complainants occurred, then the jury was not entitled to use the finding of guilt solely in relation to count 2 and the evidence that supported that finding in determining whether the State had proved the element of indecency in relation to counts 1 and 3, including in determining whether the State had negatived any suggestion that any touching by the appellant the subject of counts 1 and 3 was accidental or not of a sexual character.

15. Further, generally for the reasons we have given in relation to count 2, we are of the opinion that findings of guilt in relation to both count 2 and count 3 (which concerned BK and allegedly occurred during a single episode) were not of themselves logically capable of establishing that the appellant had a sexual interest in the other complainants when the alleged offending against the other complainants occurred.

16. It follows that if, as we have decided, findings of guilt in relation to both count 2 and count 3 were not of themselves logically capable of establishing that the appellant had a sexual interest in the other complainants at the material time, then the jury was not entitled to use the findings of guilt in relation to both count 2 and count 3 and the evidence that supported those findings in determining whether the State had proved the element of indecency in relation to count 1, including in determining whether the State had negatived any suggestion that the alleged touching by the appellant the subject of count 1 was accidental or not of a sexual character.

17. Further, generally for the reasons we have given in relation to count 2, we are of the opinion that:

    (a)a finding of guilt in relation to count 1 (which concerned JD); or

    (b)a finding of guilt in relation to count 4 (which concerned KK),

    was not of itself logically capable of establishing that the appellant had a sexual interest in the other complainants when the alleged offending against the other complainants occurred.

18. It follows that if, as we have decided, a finding of guilt in relation to count 1 or count 4 was not of itself logically capable of establishing that the appellant had a sexual interest in the other complainants at the material time, then the jury was not entitled to use the finding of guilt in relation to count 1 or count 4 and the evidence that supported that finding in determining whether the State had proved the element of indecency in relation to any of counts 1, 2 and 3 that remained for consideration, including in determining whether the State had negatived any suggestion that the alleged touching by the appellant the subject of any of those outstanding counts was accidental or not of a sexual character.

19. It is unnecessary, for the purposes of determining ground 1, to decide whether findings of guilt in relation to all of counts 1, 2 and 3, all of counts 2, 3 and 4, both of counts 1 and 2, both of counts 1 and 3 or both of counts 1 and 4 were logically capable of establishing that the appellant had a sexual interest in the other complainant when the alleged offending against the other complainant occurred.

20. Nevertheless, it is appropriate, in view of the order for a new trial, that we express our opinion that if:

    (a)the jury were to find the appellant guilty of count 1 (in relation to JD) and counts 2 and 3 (in relation to BK);

    (b)the jury were to find the appellant guilty of counts 2 and 3 (in relation to BK) and count 4 (in relation to KK);

    (c)the jury were to find the appellant guilty of count 1 (in relation to JD) and count 3 (in relation to BK); or

    (d)the jury were to find the appellant guilty of count 1 (in relation to JD) and count 4 (in relation to KK),

    it would be open to the jury, having regard to those findings of guilt and the evidence that supported those findings, to conclude that the appellant was likely to have had a sexual interest in the remaining complainant when the alleged offending against the other complainant occurred.

21. We do not think that conclusion would be open to the jury if the jury were merely to find the appellant guilty of count 1 (in relation to JD) and count 2 (in relation to BK).

22. We reiterate, as we have noted previously, that although the State relied upon any finding of guilt on count 4 in connection with the appellant's alleged tendency to be 'sexually interested in [ED]'s younger female siblings' (ts 387), the elements of the charged offence in count 4 did not include an element of indecency.

23. It is true that defence counsel did not object to the trial judge's directions.  However, it is plain that defence counsel's failure to object was not in pursuit of a legitimate forensic purpose.  The appellant could not have, and did not, derive any forensic benefit from the impugned directions.  We are satisfied that, in the circumstances, a miscarriage of justice was occasioned.

24. Ground 1 has been made out.

25. Ground 2 asserts, in essence, that her Honour misdirected the jury that the State's case was that a finding of guilt on one or more of the counts 'establishes a propensity, or tendency of [the appellant] to act on that sexual interest by touching those girls in a sexual and indecent way when the circumstances permitted, namely in the lounge room of the relevant home in which he was living at night‑time when [ED] had gone to bed', because the State's case did not include that contention.

26. In Nuhana v The State of Western Australia,[15] Mazza, Mitchell and Beech JJA observed:

    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 (Robinson v The Queen [2006] NSWCCA 199; (2006) 162 A Crim R 88 [140]; R v GAS [1998] 3 VR 862, 878 - 879; Waters v The Queen [2011] VSCA 415 [103] (point (5)). 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 (King v The Queen [1986] HCA 59; (1986) 161 CLR 423, 432; Robinson [149]). 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 (King, (432); Robinson [146] and cases there cited).

    See also McCosker v The King.[16]

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

    [16] McCosker v The King [2023] NSWCCA 131 [102] ‑ [106] (Ward P and Price J), [118] (Beech‑Jones CJ at CL).

27. In the present case, the State relied upon propensity or tendency evidence as stated at [100] ‑ [102] above. The State alleged that if the jury found the appellant guilty of any count, then that finding of guilt would reveal a tendency by the appellant to be 'sexually interested in [ED]'s younger female siblings' (ts 387). The State only relied upon that alleged tendency if the alleged tendency was revealed by a finding of guilt on any count (ts 387). If the alleged tendency was revealed by a finding of guilt on any count, then the State relied upon the tendency solely for the purpose of the jury determining whether any charged physical conduct, the subject of counts 1, 2 and 3, which the jury was satisfied having regard to other evidence had occurred, was indecent (ts 387).

28. At the retrial, the prosecutor submitted to the jury in her closing address, relevantly and in effect, that if:

    (a)the jury found the appellant guilty of any count;

    (b)the jury concluded that the evidence on that count demonstrated that the appellant had a sexual interest in ED's younger sisters; and

    (c)the jury concluded that the appellant was willing to act on that sexual interest,

    then the jury could use those conclusions in deciding whether any charged physical conduct, the subject of counts 1, 2 and 3, which the jury were satisfied having regard to other evidence had occurred, was indecent (ts 804 ‑ 805).

29. As we have mentioned, the trial judge directed the jury, relevantly and in effect, that the prosecutor had submitted that:

    (a)'a finding of guilt on one or more of the charges establishes that [the appellant] had a sexual interest in [ED]'s sisters' (ts 861); and

    (b)a finding of guilt on one or more of the charges also establishes 'a propensity, or tendency of [the appellant] to act on that sexual interest by touching those girls in a sexual and indecent way when the circumstances permitted, namely in the lounge room of the relevant home in which he was living at night‑time when [ED] had gone to bed' (ts 861).

30. It is apparent that her Honour, in directing the jury, put the State's case on a basis that was different from the State's case as articulated by the prosecutor.  In particular, her Honour said that the prosecutor had submitted that a finding of guilt on one or more of the charges established, relevantly, a propensity or tendency to act on his sexual interest in ED's sisters 'by touching those girls in a sexual and indecent way when the circumstances permitted, namely in the lounge room of the relevant home in which he was living at night‑time when [ED] had gone to bed' (ts 861).  By contrast, the prosecutor merely referred in her closing address, relevantly, to the appellant being 'willing to act on' his alleged sexual interest in ED's younger sisters.

1. However, we are satisfied that the trial judge's impugned direction did not occasion a miscarriage of justice.  Her Honour's misstatement of the State's case, as articulated by the prosecutor, confined the appellant's willingness to act on the alleged propensity or tendency by reference to the particular circumstances in which the alleged offending occurred, namely in the lounge room of the relevant home in which the appellant was living at night‑time when ED had gone to bed.  In our opinion, the misstatement did not have a 'real chance' of affecting the jury's verdict on any of the counts.  See Hofer v The Queen.[17]  Put differently, her Honour's misstatement could not 'realistically have affected the verdict[s] of guilt[y]'.  See Hofer [123] (Gageler J).

   [17] Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 [41], [47] (Kiefel CJ, Keane and Gleeson JJ).

2. Ground 2 fails.

3. Ground 3 asserts, in essence, that if it was open to the jury to use a finding of guilt on one or more of the counts in deciding whether the State had proved the element of indecency in relation to counts 1, 2 and 3, a miscarriage of justice occurred at the trial because her Honour failed to direct the jury that they could only use that finding of guilt:

   (a)if the jury were first satisfied, without regard to any other findings of guilt, that the appellant did the physical act alleged in the count the jury was considering; and

   (b)in deciding whether that act occurred deliberately and with a sexual motive and was therefore indecent.

4. Ground 3 is expressly formulated on the premise that it was open to the jury to use a finding of guilt on one or more of the counts in deciding whether the State had proved the element of indecency in relation to counts 1, 2 and 3.  The premise has not been made out.  See our reasons in relation to ground 1.  Strictly, it is therefore unnecessary to decide ground 3.

5. We will, however, express our opinion on the substantive point raised by ground 3 because the ground was fully argued by counsel and that point may arise in some form at the new trial that has been ordered.

6. As we have mentioned, where evidence is admissible for one purpose but inadmissible for other purposes, and there is a perceptible risk that, without a judicial direction, the jury may use the evidence for an impermissible purpose, the trial judge is bound to direct the jury as to the purpose for which the evidence may be used and the purposes for which the evidence may not be used. See [89] above.

7. In the present case, the trial judge directed the jury, relevantly and in effect, that:

   (a)The prosecutor had submitted that 'a finding of guilt on one or more of the charges establishes that [the appellant] had a sexual interest in [ED]'s sisters' (ts 861).

   (b)A finding that '[the appellant] is guilty on one or more of the charges may well establish a sexual interest, or propensity, or tendency as the State has submitted' (namely, a tendency to be sexually interested in ED's younger female siblings), but that was 'a matter for [the jury]' (ts 861).

   (c)If the jury were satisfied beyond reasonable doubt that the appellant was guilty of one or more of the charges, the jury could consider the evidence in relation to that charge or those charges, together with all of the other relevant evidence, in deciding whether the State had proved the element of indecency in relation to counts 1, 2 and 3 beyond reasonable doubt (ts 861).

   (d)It was on the issue of indecency, including whether 'the touching was not accidental or motivated … by something other than indecency', that the jury could use the propensity alleged by the State (ts 862).

   (e)If the jury was satisfied beyond reasonable doubt that the appellant was guilty of one or more of the charges, the jury could only use the evidence in relation to that charge or those charges in considering the element of indecency on one or more of counts 1, 2 and 3 if the jury were satisfied that '[the appellant] had a sexual interest in [ED]'s sisters, and that he had the sexual interest and the tendency at the time of the specific act which is the subject of the remaining charge or charges that [the jury were] still considering' (ts 862).

   (f)If the jury were satisfied beyond reasonable doubt that the appellant was guilty of one or more of the charges, the jury could not use the evidence in relation to that charge or those charges in substitution for the evidence relating to any other charge and the finding of guilt 'must not lead [the jury] automatically to [return] a guilty verdict on any other charge' (ts 862).

   (g)For each charge, the jury had to decide on the whole of the evidence whether or not the State had established beyond reasonable doubt that the appellant had committed the specific act as alleged in that charge and the jury could not convict the appellant of any charge unless the State satisfied the jury beyond reasonable doubt that the appellant had committed the specific act as alleged in that charge (ts 862).

8. Her Honour gave the jury, relevantly and in effect, these directions in relation to the concept of indecency:

   (a)an act of touching will not be indecent unless the touching was 'a deliberate act, an intentional act' (ts 841);

   (b)whether or not an act of touching is indecent 'may depend on why it was done; that is, the motivation for the person doing it' (ts 838);

   (c)to be indecent, an act of touching 'must have a sexual connotation' (ts 838); and

   (d)to be indecent, an act of touching 'must have a sexual connotation' and there 'must be a sexual motivation' (ts 838).

9. The trial judge did not direct the jury, expressly and in terms, that the jury could only use a finding of guilt on one or more of the counts in deciding whether the State had proved the element of indecency in relation to counts 1, 2 and 3:

   (a)if the jury were first satisfied, without regard to any other findings of guilt, that the appellant did the physical act alleged in the count the jury was considering; and

   (b)in deciding whether that act occurred deliberately and with a sexual motive and was therefore indecent.

10. However, we are of the opinion that a jury, listening to her Honour's directions (and the summing up) as a whole, would have understood that:

    (a)A finding of guilt on at least one count could not be used in deciding whether the State had proved the element of indecency in relation to counts 1, 2 and 3 unless the jury were first satisfied, without regard to the relevant finding or findings of guilt, that the appellant did the physical act alleged in the count the jury was considering.  An understanding to that effect would have been readily apparent from the directions we have reproduced at [141(c), (d), (e), (f) and (g)] and [142] above.

    (b)The element of indecency in counts 1, 2 and 3 required the State to prove beyond reasonable doubt that the physical act alleged in the count the jury was considering was deliberate and was of a sexual character.  An understanding to that effect would have been readily apparent from the directions we have reproduced at [141(c), (d), (e), (f) and (g)] and [142] above.

11. The substantive point raised by ground 3 has not been made out.

12. Ground 4 asserts, in essence, that a miscarriage of justice occurred at the trial because her Honour did not direct the jury that the jury could not use a finding of guilt on any one or more of the four counts in deciding whether the State had proved the appellant's guilt on any one or more of the other three counts.

13. The relevant legal principle to be applied in evaluating the adequacy of a trial judge's directions, where evidence is admissible for one purpose but inadmissible for other purposes, is set out at [89] and [140] above.

14. The relevant directions of the trial judge are set out at [141] and [142] above.

15. Her Honour did not direct the jury, expressly and in terms, that the jury could not use a finding of guilt on any one or more of the four counts in deciding whether the State had proved the appellant's guilt on any one or more of the other three counts.

16. The jury's use of a finding of guilt in accordance with the trial judge's directions involved four steps.  First, the jury had to find the appellant guilty of at least one count.  Secondly, the jury had to conclude that their finding of guilt on at least one count established that the appellant had a sexual interest in ED's sisters (that is, a sexual interest in JD (the complainant in count 1), BK (the complainant in counts 2 and 3) and KK (the complainant in count 4)).  Thirdly, the jury had to conclude that their finding of guilt on at least one count established that the appellant had a willingness to act on that sexual interest in the manner explained by her Honour.  Fourthly, if the jury found the appellant guilty of at least one count and the jury concluded that their finding of guilt on at least one count established that the appellant had a sexual interest in ED's sisters and a willingness to act on that sexual interest in the manner explained by her Honour, the jury could consider the evidence in relation to that count, together with all of the other relevant evidence, in deciding whether the State had proved the element of indecency in relation to counts 1, 2 and 3.

17. In our opinion, there was a perceptible risk that, without a judicial direction to the effect that the jury could not use a finding of guilt on at least one count in deciding whether the State had proved the appellant's guilt on any one or more of the other counts, apart from proof of the element of indecency in relation to counts 1, 2 and 3, the jury may have used the evidence of guilt for an impermissible purpose.

18. In particular, there was a perceptible risk that, absent a direction from her Honour to that effect, the jury may have reasoned, on the basis of their finding of guilt on one or more of the counts, that:

    (a)the appellant had a sexual interest in ED's sisters; and

    (b)the appellant's sexual interest in ED's sisters increased the likelihood that the appellant had committed the physical act alleged in another count or other counts.

19. As we have stated, in deciding ground 1, a finding of guilt solely in relation to one of the counts was not of itself logically capable of establishing that the appellant had a sexual interest in the other complainants when the alleged offending against the other complainants occurred.

20. The trial judge expressly directed the jury that:

    (a)the jury could not use the evidence in relation to a charge or charges on which they had made a finding or findings of guilt in substitution for the evidence relating to any other charge (ts 862); and

    (b)if the jury made a finding or findings of guilt on one or more of the charges, any such finding or findings must not lead the jury automatically to return a guilty verdict on any other charge (ts 862).

21. However, her Honour did not give the jury any other directions as to the purposes for which the evidence must not be used.

22. Although defence counsel did not object to the trial judge's directions or seek a redirection or an additional direction, it is readily apparent that defence counsel's failure to object or seek a redirection or an additional direction was not in pursuit of a legitimate forensic purpose.  The appellant could not have, and did not, derive any forensic benefit from the absence of the requisite direction.  We are satisfied that, in the circumstances, a miscarriage of justice occurred.

23. Ground 4 has been made out.

Conclusion

1. For these reasons, we made the orders set out at [16] above.

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

YK

Associate to the Honourable President Buss

7 JULY 2023