ZER v The State of Western Australia - [2025] WASCA 56

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ZER -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 56
CORAM:   MAZZA JA
VAUGHAN JA
HALL JA

HEARD:   18 NOVEMBER 2024
DELIVERED          :   17 APRIL 2025
FILE NO/S:   CACR 138 of 2023
BETWEEN:   ZER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
File Number            :   IND 2283 of 2021

Catchwords:

Criminal law - Appeal against conviction - Child sexual offences - Where evidence led of uncharged acts - Whether trial judge wrongly directed the jury that uncharged acts could be used as propensity evidence - Whether trial judge wrongly directed the jury that evidence of pretext calls and Facebook messages could be used to show that the appellant had a sexual interest in the complainant - Whether defence counsel afforded opportunity to make submissions as to the use of the evidence with result that there was a denial of procedural fairness - Whether directions regarding the pretext calls were adequate

Legislation:

Criminal Code (WA), s 321(2), s 321(4)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	R Sleeth
Respondent	:	G N Beggs

Solicitors:

Appellant	:	Gray & Co Lawyers
Respondent	:	Director of Public Prosecutions (WA)

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

Austin v The State of Western Australia [2023] WASCA 191
HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978
JEL v The State of Western Australia [2022] WASCA 32; (2022) 58 WAR 295
LNN v The State of Western Australia [2021] WASCA 39
McCosker v The Queen [2023] NSWCCA 131
Nuhana v The State of Western Australia [2018] WASCA 79
PRS v The State of Western Australia [2023] WASCA 106
Roberts v The State of Western Australia [2019] WASCA 83
Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88
The State of Western Australia v ZER [2024] WASCA 84
Zhou v The Queen [2021] NSWCCA 278

JUDGMENT OF THE COURT:

The appellant was convicted after a trial of eight sexual offences against a child who was over the age of 13 years and under 16 years. Those offences consisted of seven offences of aggravated sexual penetration and one offence of aggravated indecent dealing.[1] The appellant was acquitted of a further six charges. He was sentenced to a total effective sentence of 5 years 6 months' imprisonment. That sentence was the subject of a State appeal, which has been separately dealt with. See The State of Western Australia v ZER.[2] The appellant now seeks leave to appeal against his conviction.
[1] WAB 10.
[2] The State of Western Australia v ZER [2024] WASCA 84.
The appeal notice was filed approximately five months out of time and an extension is required.[3] An affidavit from the appellant's solicitor states that an opinion was obtained as to the merits of the appeal prior to the expiry of the appeal period.[4] A second opinion was sought from a barrister who was appointed to a judicial position before an opinion could be provided. Counsel who appeared for the appellant on the appeal was briefed on 30 November 2023.[5] The information provided does not adequately explain the whole of the delay. In those circumstances, whether an extension should be granted depends on the merits of the appeal.
[3] WAB 1.
[4] WAB 6 - 7.
[5] WAB 7.
There are two grounds of appeal.[6] The first ground alleges that the trial judge made a wrong decision on a question of law, or a miscarriage of justice was occasioned, because the jury were directed that they could use evidence of uncharged acts as propensity evidence. The second ground alleges that the trial judge made a wrong decision on a question of law, or a miscarriage of justice was occasioned, because the jury were directed that they could use evidence of pretext calls and Facebook messages to reason that the appellant had a propensity to offend. In respect of both grounds, a complaint is also made that defence counsel was not afforded an opportunity to make submissions as to the use of the evidence and that as a result there was a denial of procedural fairness.
[6] WAB 9.
It was not contended at the trial that the evidence of uncharged acts was inadmissible, either at all or as propensity evidence. No complaint was made regarding the directions as to the use of the uncharged acts evidence. It is apparent from a fair reading of the trial transcript that the use of this evidence to support propensity reasoning was not a contentious issue at the trial.[7]
[7] ts 476 - 478.
Equally, the use of the pretext calls and Facebook messages as propensity evidence was non‑controversial. There was no complaint regarding the directions in respect of that evidence.
The directions were raised with defence counsel before they were given. An opportunity was afforded to make submissions about the directions.[8] There was no suggestion that the directions should not be given. Nor was there any complaint after they were given. The suggestion that there was a denial of procedural fairness is without a proper foundation.
[8] ts 417 - 419.
There was an application made at the hearing of the appeal to add a third ground of appeal.[9] The court reserved its position on the application but heard full argument. The proposed ground is that the trial judge made an error of law in giving a direction regarding the pretext calls that was deficient in material respects.
[9] Appeal ts 19 - 20.
There is no merit in either ground of appeal or the proposed additional ground. An extension of time should be refused, leave to appeal should be refused and the appeal dismissed.

Prosecution case

In 2012 and 2013, the appellant, his wife and two children were residing in a regional town. The appellant and his wife were approved foster carers.[10] Between April 2012 and August 2013, the complainant was placed in foster care with the appellant and his wife and came to live in their family home. The complainant's sister had also been placed in the same foster care arrangement. At the time the complainant lived with the appellant and his family, she was aged between 13 and 15 years.[11]
[10] ts 48.
[11] ts 89.
The complainant occupied her own bedroom at the house.[12] The first incident of sexual offending was alleged to have occurred on an unknown date between 31 March 2012 and 14 August 2013. On this occasion, the appellant's wife was not at home and the complainant was in her bedroom at the back of the house. The complainant and the appellant exchanged text messages. The appellant told the complainant, by text, that he wanted her to go to his bedroom, which she did.
[12] ts 89.
When the complainant went to the appellant's bedroom, he locked the door behind her, placed her on the bed and took off her pyjama bottoms. He also removed her underpants. The appellant started kissing her body and lifted up her pyjama top and kissed her stomach. He then started licking her vagina.[13] That act of cunnilingus was the subject of count 1, an offence of sexually penetrating a child of or over the age of 13 years and under the age of 16 years, who was under the appellant's care, supervision or authority, contrary to s 321(2) of the Criminal Code (WA) (Code).
[13] ts 89.
The appellant then took off his pants and penetrated the complainant's vagina with his penis. That act constituted count 2, an offence of sexually penetrating a child of or over the age of 13 years and under the age of 16 years, who was under the appellant's care, supervision or authority, contrary to s 321(2) of the Code.
On another unknown date between 31 March 2012 and 14 August 2013, the appellant took the complainant with him when he drove his car to pick up the complainant's sister from Army Cadets. While driving the vehicle, the appellant told the complainant to suck his penis, and she did so.[14] That act constituted count 3, an offence of sexually penetrating a child of or over the age of 13 years and under the age of 16 years, who was under the appellant's care, supervision or authority, contrary to s 321(2) of the Code.
[14] ts 90.
On another unknown date between 31 March 2012 and 14 August 2013, the appellant and the complainant were in the same car, which was parked at nighttime near a body of water. The appellant told the complainant to 'do it', meaning to suck his penis. The complainant did as she was told. That act constituted count 4, an offence of sexually penetrating a child of or over the age of 13 years and under the age of 16 years, who was under the appellant's care, supervision or authority, contrary to s 321(2) of the Code.
On another unknown date between 31 March 2012 and 14 August 2013, the appellant was driving his wife's smaller car and the complainant was in the car with him. The appellant told the complainant to suck his penis, which she did.[15] That act constituted count 5, an offence of sexually penetrating a child of or over the age of 13 years and under the age of 16 years, who was under the appellant's care, supervision or authority, contrary to s 321(2) of the Code.
[15] ts 90.
The appellant was acquitted of counts 6 ‑ 8, 10 and 12 ‑ 14. It is unnecessary to refer to the allegations in respect of those counts.
On another unknown date between 31 March 2012 and 14 August 2013, the complainant was in a shed at the family property with the appellant. On this occasion, the complainant's pants were taken down and the appellant put his fingers inside her vagina.[16] That act constituted count 9, an offence of sexually penetrating a child of or over the age of 13 years and under the age of 16 years, who was under the appellant's care, supervision or authority, contrary to s 321(2) of the Code.
[16] ts 92.
On another unknown date between 31 March 2012 and 14 August 2013, the complainant and the appellant were again in a shed at the family property. On this occasion, the appellant caused the complainant to hold his penis.[17] That act constituted count 11, an offence of indecently dealing with a child of or over the age of 13 years and under the age of 16 years, who was under the appellant's care, supervision or authority, contrary to s 321(4) of the Code.
[17] ts 92.
On another unknown date between 31 March 2012 and 14 August 2013, the appellant took the complainant to his place of work. The appellant was doing repairs on a truck and the complainant was sitting in the truck. The complainant was wearing long pants and underwear, and the appellant was wearing work clothes. The complainant got out of the truck and the appellant kissed her. He then pulled down the complainant's pants and her underwear and also pulled down his own work pants. The appellant turned the complainant around and penetrated her vagina with his penis from behind.[18] This conduct constituted count 15, an offence of sexually penetrating a child of or over the age of 13 years and under the age of 16 years who was under the appellant's care, supervision or authority, contrary to s 321(2) of the Code.
[18] ts 91.
On 20 July 2020, the complainant made a complaint to the police. On 26 July 2020, the complainant, on the instructions of the police, contacted the appellant by Facebook Messenger.[19] This resulted in a telephone call with the appellant, in which he made admissions. In particular, when asked if his wife had found out, he responded that she had not found out anything. He also accepted in the call that he had previously been regularly communicating with the complainant and then suddenly stopped. The appellant referred to the fact that his wife had seen some of the messages that he had sent to the complainant and said his wife thought that he 'had a crush' on the complainant. When the complainant asked why they had sex when she was only 14, the appellant responded by saying that he did not know how to make things right for her.[20]
[19] ts 92.
[20] ts 96.

Grounds of appeal

The grounds of appeal are as follows:[21]
1.The learned trial judge made a wrong decision on a question of law, or a miscarriage of justice was occasioned, because the jury were directed that they could use the evidence of 'uncharged acts' as 'propensity' evidence, when that was not how the State put its case.
2.The learned trial judge made a wrong decision on a question of law, or a miscarriage of justice was occasioned because the jury were directed that they could use the evidence of the 'pre‑text call' and Facebook messages to reason that the appellant had a 'propensity' to offend against the complainant when that was not how the State put its case; and in doing so the learned trial judge denied the appellant procedural fairness.
[21] WAB 9.
At the hearing of the appeal the appellant sought leave to add a further ground. A decision on whether to grant that leave was reserved, but the ground was fully argued.[22] The proposed ground is as follows:
3.The learned trial judge erred on a matter of law by failing to direct the jury properly on tendency reasoning in relation to the 'admission' relied on by the State in that:
a.He didn't tell the jury that the tendency needed to exist at the time of the count they were considering;
b.He didn't remind the jury that each count must be considered separately and that a finding of guilt on one count will not automatically lead to a finding of guilt on another count;
c.He didn't tell the jury that even if they were satisfied that the Appellant did have such a sexual interest in the complainant, they couldn't conclude by that fact alone he was guilty of any count; it can't automatically lead you to a finding of guilt on any count;
d.He didn't tell the jury that a finding of sexual interest in the complainant will not fill any gaps in the prosecution case;
e.He didn't tell the jury the use they could make of the evidence if they did not accept that the admission contended for [by] the prosecution was made.
[22] Appeal ts 19 - 20.

Relevant legal principles

In HCF v The Queen,[23] a majority of the High Court referred with approval to a summary of the errors or irregularities that will amount to a miscarriage of justice given by Beech‑Jones CJ at CL (as his Honour then was) in Zhou v The Queen.[24] The following observations were made by his Honour in Zhou:[25]
If … [the error or irregularity] is properly characterised as a 'failure to observe the requirements of the criminal process in a fundamental respect' then it would follow that the conviction would not stand regardless of any assessment of its potential effect on the trial … To constitute a miscarriage of justice … [the error or irregularity] has to be prejudicial in the sense that there was a 'real chance' that it affected the jury's verdict ... or 'realistically could have affected the verdict of guilt' or 'had the capacity for practical injustice' or was 'capable of affecting the result of the trial'. (citations omitted)
[23] HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 [2] (Gageler CJ, Gleeson & Jagot JJ).
[24] Zhou v The Queen [2021] NSWCCA 278.
[25] Zhou [22] (Beech‑Jones CJ at CL), [30] (Davies J), [31] (Wilson J).
It is necessary to afford procedural fairness to a person accused of a criminal offence, including by affording the accused an opportunity to be heard on a matter that may affect their rights or interests.
In Austin v The State of Western Australia,[26] this court recently considered the application of the rules of procedural fairness in the context of criminal proceedings. Buss P and Mazza JA said:[27]
The rules of procedural fairness are concerned with processes rather than outcomes. They are therefore rules which govern what a court must do in the course of deciding how a power should be exercised. That is, the rules of procedural fairness apply to the processes by which a decision pursuant to the exercise of power will be made. See Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs.
Fairness is essentially a practical concept. It is not abstract in nature. The rules of procedural fairness are concerned to avoid practical injustice. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam.
In Pantorno, the appellant pleaded guilty to a charge of possession of a drug of dependence. Defence counsel told the sentencing judge that the quantity of the drug was very small and was for the appellant's own use. He referred to s 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) as prescribing the relevant penalty 'where it is not a trafficable amount, and the Crown doesn't suggest for one moment that this is a trafficable amount'. The prosecutor did not challenge that assertion and made no submissions about sentence. The sentencing judge sentenced the appellant under s 73(1)(c) of the Act, which prescribed a higher penalty than s 73(1)(b), on the basis that there was no evidence before him that the appellant's possession of the drug was not for a purpose relating to trafficking. The High Court held that, since the proceedings before the sentencing judge had been conducted by the prosecutor and defence counsel on the footing that s 73(1)(b) applied, it had not been open to the judge to sentence under s 73(1)(c) without giving defence counsel an opportunity to show why the appellant was not liable to the higher penalty prescribed by s 73(1)(c).
Mason CJ and Brennan J said:
'When the parties to an adversarial proceeding agree on a proposition of law and conduct their cases on that basis, their agreement does not bind the trial judge. If the judge determines the law to be different, he may apply the law as he determines it to be, but he must inform the parties of the view he has formed when that is necessary to give them an opportunity to address new issues arising from the judge's departure from the proposition of law on which the case was conducted. Otherwise both parties are taken by surprise: see Fairmount Ltd v Environment Secretary. Especially in the criminal court, there is a need to ensure that the accused or convicted person is not taken by surprise: he must be given a fair opportunity of meeting the case against him so far as that case has not already been put to him for answer.'
(original emphasis) (citations omitted)
[26] Austin v The State of Western Australia [2023] WASCA 191.
[27] Austin [53] - [56] (Buss P & Mazza JA).
In a criminal trial, the State is required to formulate the basis on which it puts its case against the accused and, essentially, to adhere to that case. If there is to be any change in the nature of the State case it is vital that it be identified with some precision (in the absence of the jury) before counsel commence their final addresses.[28]
[28] Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88 [141] ‑ [142].
Generally speaking, in directing a jury a trial judge should not advance to the jury an argument in support of the prosecution case that was not put by the prosecution. A miscarriage of justice will arise where a judge leaves the prosecution case to the jury on a basis which significantly departs from that advanced by the prosecution, in such a manner as to deprive the accused of a fair trial. The unfairness of the trial may consist of the loss of an opportunity to make responding submissions, even where there is no additional evidence which the accused could have adduced. See Nuhana v The State of Western Australia;[29] Roberts v The State of Western Australia;[30] PRS v The State of Western Australia.[31]
[29] Nuhana v The State of Western Australia [2018] WASCA 79 [69].
[30] Roberts v The State of Western Australia [2019] WASCA 83 [52].
[31] PRS v The State of Western Australia [2023] WASCA 106 [130].
Even if the prejudice to the accused was confined to the inability to address the jury on the question, that itself is capable of being a most significant area of prejudice.[32] However, a miscarriage of justice is not made out merely by there being a basis of guilt advanced that is additional to how the State put its case.[33]
[32] Robinson [146].
[33] McCosker v The Queen [2023] NSWCCA 131 [103].

Ground 1 - uncharged acts evidence

In dealing with ground 1, it is necessary to identify the evidence of uncharged acts. It will then be necessary to consider what directions were given by the trial judge regarding that evidence.
In opening, the prosecutor said that the appellant sexually offended against the complainant regularly and that the complainant would say that it happened 'all the time'.[34] The prosecutor referred to each of the specific incidents that were the subject of the charges. When referring to count 3, the prosecutor said that the appellant would take the complainant with him when he went to pick up her sister from Army Cadets once a week and that, on these occasions, he would get the complainant to suck his penis.[35] It was not clear from the opening whether this was said to have happened on every such occasion.
[34] ts 89.
[35] ts 90.
The prosecutor also said that the appellant touched the complainant on the vagina in a shed 'all the time'.[36] The prosecutor referred to counts 8 to 11 as being the 'shed counts' as they were all alleged to have occurred in a shed at the appellant's property. Count 8 was an allegation that the appellant had penetrated the complainant by introducing his penis into her mouth. Count 9 was an allegation that the appellant had penetrated the complainant's vagina with his fingers. Count 10 was an allegation that the appellant had touched the complainant's genital area. Count 11 was an allegation that the appellant had caused the complainant to masturbate him, though this was later amended to an allegation that he caused her to hold his penis.
[36] ts 91.
In her evidence, the complainant said that either the appellant or his wife would pick up her sister from Army Cadets.[37] She then gave the following evidence:[38]
And did you ever go to pick up [your sister]?---Yes.
And when you went to go to pick up [your sister], who did you go with?---I went with [the appellant].
And when [the appellant] went to go and pick up [your sister] from Army Cadets, what car did [the appellant] drive?---Sometimes he drove [his wife's] car or sometimes he had his white LandCruiser.
Did anything ever happen when you went to pick up [your sister] from Army Cadets?---Yes.
Can you tell us about that?---Yes. So [the appellant] would send me a message, if I wasn't already out of the bedroom, and say, 'Yeah. Leaving in five minutes to get [your sister]'. So I would meet him out in five minutes and we would go to get [my sister]. On the way to getting [my sister], I would suck his dick - his penis.
And do you remember a specific time this happened?---Yes.
[37] ts 123.
[38] ts 123.
The complainant then gave evidence regarding the incident that was the subject of count 3.
The complainant was asked about the shed at the appellant's property.[39] The complainant gave the following evidence:[40]
Did anything happen in the shed?---Yes.
What happened in the shed?---There [were] times where I would wank him off in the shed. There [were] times where he would touch my vagina. Yes.
You say there [were] times that you would wank him off in the shed?---Mmm.
In relation to one of those times, tell us about one of those times [you wanked him] off in the shed?---Can I please have a break.[41]
[39] ts 134 - 135.
[40] ts 135.
[41] The prosecutor in fact asks '[i]n relation to one of those times, tell us about one of those times he wanked you off in the shed?' This appears to be an error (ts 135).
After a break the evidence resumed:[42]
[42] ts 137.
[The complainant], just before the break you said that there were times in the shed that [the appellant] would touch your vagina?---Yes.
Tell us about [the appellant] touching your vagina. Tell us about one time that he touched your vagina?---One time we were working on go‑karts and - yes, and I just - just touching my vagina with his hand on the outside of my pants and inside of my pants.
And when he touched your vagina inside your pants, whereabouts did he touch your vagina?---Inside my vagina.
And is that the only time he touched you on the vagina?---No. There has been heaps - in the shed, you mean?
Yes?---Yes. From what I can remember, yes.
You've told us that he got you to wank him. What did you mean by that?---I don't know how to explain it. Basically if you pull his penis.
You - so holding his penis?---Yes.
And what did you do when you held his penis?---Like, pulled it.
And what happened when you pulled his penis?---Nothing. I was just doing it.
Can you show us what you were doing? Can you hold up your hand, and show us what you were doing?---Yes. Like---
You were moving your hand backwards and forwards?---Yes.
Is that what you were doing with his penis?---Yes.
How often did you go to the shed?---Pretty often, we would fix go‑karts a lot, yes. Stuff didn't happen every time we were in the shed.
Anything else you can tell us happened in the shed?---No.
Your Honour, I note the time. That's probably a good time.
BOWDEN DCJ: [The complainant], I may have misheard one of your answers; Ms Boston was asking you about when things happened in the shed - as I understood it - on other occasions, and I missed your answer?---'Has it happened on other occasions?'
In the shed?---What had - what?
Well, perhaps you could re‑put the question, Ms Boston.
BOSTON, MS: In the shed with [the appellant], did anything else happen, on other occasions?---I don't think anything else happened on other occasions.
Okay. How regularly did things happen in the shed?---Just sometimes, not every time we were in the shed.
And in relation to things that happened in the shed, you have told us about one occasion, that you would wank him?---Yes.
And one occasion that he touched your vagina?---Mmm.
Can you tell us about any other occasions in the shed?---I sucked his penis in the shed. Yes, that's it - yes, that was it.
When you were telling us about the time that you touched your vagina - I'm sorry, what did he touch your vagina with?---His hand.
And whereabouts did his hand touch your vagina?---Outside of my pants, and inside my pants and underwear - and in my vagina.
The complainant also gave evidence in cross‑examination of having received multiple text messages of a sexual nature from the appellant, including images of the appellant's penis.[43]
[43] ts 228 ‑ 230.
In summary, the complainant gave evidence about one specific incident that occurred when she was with the appellant in his car going to pick up her sister. That incident was the subject of count 3. The complainant gave evidence of three specific incidents that occurred in the shed, namely a digital penetration of her vagina (count 9), the appellant causing her to hold his penis (count 11) and the appellant causing her to suck his penis (count 8).
There were no specific incidents referred to that were not the subject of a charge. Thus, the only evidence of uncharged acts was the suggestion that there had been other occasions when sexual acts had occurred in the shed and, in particular, that there had been 'heaps' of times when the appellant had touched the complainant on the vagina in the shed.[44]
[44] ts 137.

Ground 1 - the prosecution closing address

In her closing, the prosecutor dealt with possible reasons for delay by the complainant in complaining and then said:[45]
But what the State says is that, look, your starting point when you consider the evidence of [the complainant] is the relationship itself. A relationship in which [the appellant] sent [the complainant] on some days up to 20 to 30 text messages, including when she was at school.
A relationship in which the only child [the appellant] ever took to his workplace was [the complainant]. A relationship in which the beautiful girl, [the complainant], [the appellant] had become infatuated in - with. A relationship that we say on the basis of a pre‑text calls establishes that he had sex with [her]. That's your framework. However, none of that proves an individual count. None of that evidence is capable of proving an individual count. What it does is establishes, we say, the relationship. What proves the individual [counts] is [the complainant's] evidence.
[45] ts 441 - 442.
The prosecutor then referred to the evidence relating to each of the counts in the indictment. When dealing with the shed counts, the prosecutor commenced by saying:[46]
We've just got what I'm going to call the shed counts now. In relation to the shed, we've heard evidence on what this shed looks like. Now, it seems quite clear. You've got, effectively, a four‑bay car - four‑bay shed. The door opening is two car bays wide, and then two car bays wide is enclosed by the three sides.
No doubt, if you're - you can see into that shed from various parts. And if you're standing at that entrance, obviously, you can see all the way in. But, members of the jury, there's part of those sheds also, you might think, that are fairly secluded from the house unless you're getting closer to the shed. And people who get closer to the shed have to walk towards the shed, and that provides noise. Now, of course, in relation to what [the complainant] says happened in the shed, she doesn't say that any intercourse happens in the shed.
She talks mainly about touchings, which you would think are quick touchings, easy, then, to, you might think, remove your hand or her hand so that if somebody does come, you can obviously quickly move away. These are matters that you might take into account. She says there were times she would 'wank him off' in the shed, again, something which can stop really quickly, you might think. And there were times he would touch her vagina.
[46] ts 451 - 452.
The prosecutor then identified the evidence relating to each of the shed counts.

Ground 1 - trial judge's direction

The trial judge raised the issue of uncharged acts with counsel on day four of the trial, after counsel's closing addresses. His Honour said:[47]
[47] ts 476 - 477.
BOWDEN DCJ: The only other matter that perhaps I ought to have mentioned is when I ran through my list yesterday of matters that I was going to instruct the jury on, I'm not sure whether or not I said other conduct or what's sometimes referred to as uncharged acts---
BOSTON, MS: Yes.
BOWDEN DCJ: ---that won't be referred to me.
BOSTON, MS: There is other conduct.
BOWDEN DCJ: The other conduct - just bear with me for one moment. The other conduct is what the State say is sexualised behaviour not the subject of any charge before the court. That includes the evidence of [the complainant] that on other occasions not the subject of charges she would masturbate him in the shed. There were heaps of times where he would touch her vagina in the shed.
BOSTON, MS: Well, also she actually says in relation to the sucking of the penis that she---
BOWDEN DCJ: Well, where do you say that evidence is?
BOSTON, MS: When she's talking about when she goes to pick up cadets, she says - sorry, if I can just---
BOWDEN DCJ: That commences at page 123.
BOSTON, MS: Yes.
BOWDEN DCJ: On the way to getting [the complainant's sister]---
BOSTON, MS: Yes.
BOWDEN DCJ: 'I would suck his dick - his penis.'
BOSTON, MS: Yes.
BOWDEN DCJ: 'Do you remember a specific time?---Yes.'
BOSTON, MS: And then she speaks about a specific time.
BOWDEN DCJ: Yes. But she doesn't say it - I couldn't find any reference to her saying it occurred on other occasions. She was---
BOSTON, MS: Yes, I accept that she doesn't say that.
BOWDEN DCJ: She was taken straight to the specifics.
BOSTON, MS: I accept that.
BOWDEN DCJ: And the manner in which that will be left to the jury is, of course, the State says that that establishes a sexual interest, and if they are satisfied that it shows a sexual interest, I will instruct them on the way in which it can be used.
The trial judge then turned to defence counsel and the following exchange occurred:[48]
[48] ts 478.
BOWDEN DCJ: Do you also agree, Mr Standish - and I think this affects you more - that if the jury find the accused is guilty on one count---
STANDISH, MR: Cross‑admissibility?
BOWDEN DCJ: Yes.
STANDISH, MR: Yes, I suppose - yes.
BOWDEN DCJ: If they find him guilty on one count and are satisfied that shows a sexual interest---
STANDISH, MR: Yes, I'm happy---
BOWDEN DCJ: ---existing at the time.
STANDISH, MR: Yes, yes, yes.
BOWDEN DCJ: Yes. All right.
STANDISH, MR: But also that if they've got a doubt about one count that that might impact upon their assessment of her credibility in relation to other counts.
BOWDEN DCJ: Yes.
STANDISH, MR: No doubt. But - yes. Yes. Your Honour is obviously so experienced, I don't need to tell you how to do it.
BOWDEN DCJ: I don't know about that. That's when you're more likely to make mistakes---
STANDISH, MR: No, no, no.
BOWDEN DCJ: ---when you've been around for a while.
STANDISH, MR: No. No. I think that's absolutely open, your Honour, for that---
Although this exchange was focused on cross‑admissibility of the evidence relating to the counts on the indictment, defence counsel did not take the opportunity to suggest that a different approach was required in respect of the uncharged acts. Defence counsel raised no objection to the trial judge adopting the proposed course of action and giving the jury the direction relating to the other conduct evidence as evidence of sexual interest, tendency or propensity.
This was not the first time the trial judge raised the prosecution's apparent reliance on sexual interest, tendency or propensity. At the close of the second day of trial an issue arose about the pretext calls (these being integral to ground 2). The following exchange occurred:[49]
[49] ts 142.
BOWDEN DCJ: But it's not evidence that you rely on for specific admission as to any particular ---
BOSTON, MS: No.
BOWDEN DCJ: --- [count] on the indictment.
BOSTON, MS: No. It's ---
BOWDEN DCJ: What you say is it goes to show that he accepts, through the contents of the replies that he, in fact, has made that he has a sexual interest in her.
BOSTON, MS: Yes. It's a generalised ---
BOWDEN DCJ: Yes.
BOSTON, MS: --- admission in relation to sexual conduct.
(emphasis added)
Returning to the other conduct evidence, the trial judge gave the following direction to the jury:[50]
The State says to you that there's evidence that could lead you to be satisfied beyond reasonable doubt that [the appellant] had a sexual interest - sorry - that [the appellant] had a sexual interest in [the complainant] and a willingness to give effect to that interest, which I've referred to as a tendency.
The State says that tendency exists at the time of the count you're considering. The State lead evidence of that really in two ways. Firstly, the State says that there was other sexual behaviour, which is not the subject of any count on the indictment, by the accused towards [the complainant]. They point to [the complainant's] evidence that on other occasions, as I've said, not the subject of the charge, she would have, to use the colloquial, wank him off in the shed, and there were heaps of times that he would touch her vagina in the shed. [The appellant] denies that any of that conduct occurred.
It's a matter of fact for you to determine whether that conduct, not the subject of any count on the indictment, occurred. Secondly, the State say to you, 'Look, if you find that [the appellant] is guilty of any charge on the indictment, that establishes a sexual interest.' As I have said, as a matter of law, that because if you do find the accused guilty on one count, it doesn't mean that he's automatically guilty on another count, and each count must be considered separately. As a matter of law, a finding of guilty on one count can't prove a finding of guilt on another count.
But if you were satisfied beyond reasonable doubt that the accused is guilty of one of the counts on the indictment or satisfied beyond reasonable doubt that some or all of the sexual behaviour not the subject of any count before you on the indictment occurred, and satisfied beyond reasonable doubt that that showed he had a sexual interest in [the complainant] and a willingness to give effect to that interest, and satisfied that sexual interest existed at the time of the count, then you can take that evidence into account in the way in which I will explain to you. It's not the finding of guilt that has any relevance.
It's not the finding of inappropriate behaviour on other occasions. It's only if you find, and are satisfied beyond reasonable doubt, that it shows he had a sexual interest in [the complainant], and that sexual interest existed at the time of the count you're considering, that you can take that evidence into account. If you are satisfied of those matters, then - and satisfied that it shows a tendency to have a sexual interest in [the complainant], then that is something you can take into account in considering whether, coupled with all the other evidence relevant to that count, you are satisfied of guilt beyond reasonable doubt.
If you did find that he had that sexual interest - and it's a matter for you - then you may consider that would make it more likely that he behaved in the manner in which [the complainant] alleges. Even if you found he did have such a sexual interest in her, you couldn't conclude by that fact [alone] he was guilty of any count. It can't lead you automatically to a finding of guilt on any count. As a matter of law, such a sexual interest can't prove the accused [is] guilty and is incapable of proving that he committed the offence you are considering. It doesn't follow that if he had a sexual interest in her, that he always acted on it, and you can't use that to fill out any gaps of the prosecution case.
You can't say, if you do find he had a sexual interest, the State's other evidence should therefore automatically be accepted without scrutiny. You could be satisfied of the accused's guilt on a particular count without considering whether or not he does have such a sexual interest if you're satisfied beyond reasonable doubt of [the complainant's] evidence in respect of that count. On the other hand, even if you were satisfied that he did have such a sexual interest, you might have a reasonable doubt about his guilt in respect of a particular count.
If you were satisfied that he had the sexual interest that I've referred to and it existed at the time, then that can only be used in the manner in which I've described. On the other hand, if you were to find the accused person not guilty of any particular count on the indictment, then the fact that you had doubt - a reasonable doubt about the credibility of the complainant is something that you're entitled to take into account when you consider the other counts on the indictment.
[50] ts 494 - 496.
Defence counsel did not complain about this direction or seek a redirection.

Ground 1 - appellant's submissions

The appellant submits that the prosecutor did not seek to rely on uncharged acts as propensity evidence. The prosecutor did not invite the jury to use the uncharged acts evidence in this way in either her opening or closing address. If the prosecutor wished to rely on the uncharged acts then there was an obligation to make this clear. The appellant says that the first mention of this possible use of the evidence was after closing addresses when it was raised by the trial judge in the passage referred to at [42].[51]
[51] WAB 13.
The appellant submits that the trial judge directed the jury in a way that was contrary to how the State ran its case and that that occasioned a miscarriage of justice. Further, the appellant submits that this direction was given with no notice to defence counsel.[52] It is suggested that the appellant was denied procedural fairness because there was no fair opportunity to oppose the direction.
[52] WAB 13.

Ground 1 - respondent's submissions

The respondent notes that the appellant does not allege that the uncharged acts evidence was inadmissible as evidence of the appellant's sexual interest in the complainant and his willingness to act upon it. There is no practical distinction between charged and uncharged acts as a basis for finding that an accused person had a sexual interest in a complainant and a willingness to act upon it.[53] In those circumstances the trial judge's directions were appropriate.
[53] WAB 30 - 31.

The respondent submits that where evidence that is capable of being used in a propensity manner is adduced by the State for a non‑propensity reason, then it is desirable for the prosecutor to outline in the opening or closing address how the evidence is relied on.[54] The rationale for this is the need to guard against impermissible propensity reasoning. In the present case, whilst it was undesirable for the evidence to be left unaddressed, it does not follow that a miscarriage of justice has occurred.[55]
[54] JEL v The State of Western Australia [2022] WASCA 32; (2022) 58 WAR 295 [102], [219].
[55] WAB 32.
The respondent submits that it is incorrect to assert that the direction was given without warning to the defence.[56] The trial judge clearly indicated his intention to instruct the jury in the manner that he ultimately did and no objection was raised by defence counsel.
[56] WAB 33.
The respondent submits that the appellant does not identify how the matters he refers to amount to an irregularity in the trial, nor how those matters otherwise amount to a failure to observe the requirements of the criminal process in a fundamental respect or were relevantly prejudicial to the conduct of the appellant's trial.[57]
[57] WAB 35.

Ground 1 - the merits

There was no objection to the admissibility of the uncharged acts evidence. Critically, the only possible relevance of this evidence was to establish the existence of a relationship or tendency on the part of the appellant. It self‑evidently was evidence that went to prove the existence by the appellant of a sexual interest in the complainant and a willingness to act upon that interest. Though there was a faint suggestion at the hearing of the appeal that the evidence was admissible only as context evidence,[58] there was ultimately no serious contention that the evidence was not admissible as propensity evidence.
[58] Appeal ts 5; see also ts 491.
The only errors or irregularities that the appellant points to are that the prosecutor did not expressly rely on the uncharged acts evidence for propensity purposes and that the trial judge did not raise the question of a propensity direction until after closing addresses. Plainly, as counsel for the respondent accepted on the appeal, it would have been preferable for the prosecution to have stated unequivocally that the State intended to rely on the evidence of the other conduct for a propensity purpose. However, given that the evidence was admissible as propensity evidence it is not readily apparent how either of the factors pointed to by the appellant could have affected the verdicts. Nor is it apparent that they amount to a failure to observe the requirements of the criminal process in a fundamental respect.
The fact that the prosecutor did not expressly advert to propensity reasoning in her opening or closing addresses has to be viewed in light of the issues at the trial. The uncharged acts evidence, admissible though it was, formed a very minor part of the prosecution case. The prosecution case principally rested on the evidence of the complainant regarding the specific incidents and the admissions in the pretext calls. In these circumstances, the failure of the prosecutor to refer to propensity reasoning cannot be viewed as an implied concession that this was not part of the prosecution case. Indeed, as has already been pointed out, this was the only obvious use of the evidence.
It is evident from the exchange that occurred after closing addresses (see [42] ‑ [43] above) that both counsel were operating on the understanding that the uncharged acts evidence could be used as propensity evidence. The trial judge had raised the question of sexual interest in connection with the pretext calls (see [45] above). Experienced defence counsel expressed no surprise and did not suggest that the proposed direction would be inconsistent with the prosecution case. The only reasonable inference that can be drawn from this is that defence counsel understood that this was the basis on which the uncharged acts evidence had been led by the prosecution.
It is plainly wrong to suggest that the direction was given without notice to defence counsel. The trial judge made it clear what direction he intended to give and gave defence counsel an opportunity to make submissions regarding that direction. Defence counsel did not suggest that the proposed direction was inappropriate. Nor was there any complaint after the direction had been given, nor any request for a redirection.
This is not a case like LNN v The State of Western Australia,[59] or JEL, where evidence of uncharged acts was led for a purpose other than to prove a propensity and where directions were necessary to guard against propensity reasoning. In the present case, the State did assert that the appellant had a sexual interest in the complainant and the uncharged acts evidence was relied on to prove the existence of that interest.
[59] LNN v The State of Western Australia [2021] WASCA 39.
In the circumstances of this case, the direction given by the trial judge was entirely appropriate. The giving of the direction did not occasion a miscarriage of justice. There was no denial of procedural fairness.
Leave to appeal in respect of ground 1 should be refused.

Ground 2 - the pretext calls

After making a complaint to the police, the complainant participated in two pretext calls with the appellant at 4.42 pm and 5.26 pm on 26 July 2020.[60] Transcripts of these calls were tendered as exhibits on account of the poor quality of the recordings.[61] Some Facebook Messenger exchanges between the complainant and the appellant were also tendered.[62]
[60] ts 92.
[61] ts 142.
[62] ts 162.
The State case was that the answers given by the appellant to questions asked by the complainant in the pre‑text calls amounted to admissions to having engaged in sexual activity with the complainant. The relevant exchanges were:
1.Extract 1:[63]
[63] Exhibit 6.1, 3.
[COMPLAINANT]: But did [the appellant's wife] - did she find out---all the sexual shit?
[APPELLANT]: No. No. No. She didn't find anything - any of that out.
2.Extract 2:[64]
[64] Exhibit 6.1, 4.
[COMPLAINANT]: I just thought it was weird that you never ever messaged me. I just thought---[the appellant's wife] found out about all the sexual stuff.
[APPELLANT]: Oh, no. Yeah. Yeah. Well, I [indistinct] uh, with the [indistinct] going pretty well. And, I, uh, wanted to [indistinct] seems like you were going well, and I just didn't wanna - wanna interfere.
3.Extract 3:[65]
[65] Exhibit 6.1, 5.
[COMPLAINANT]: And I just thought maybe [the appellant's wife] found out about---
[APPELLANT]: No. She doesn't know about anything. So, well leave it with that. All good. You're going well. I wasn't going to get you into trouble but - yeah.
[COMPLAINANT]: So what did she think then? What - the message - the messages that she found, what did she think?
[APPELLANT]: Oh, she just thinks I had a crush on you, that's all.
[COMPLAINANT]: Well, that was true.
[APPELLANT]: Yeah [indistinct].
4.Extract 4:[66]
[66] Exhibit 6.1, 14 - 15.
[APPELLANT]: Well, I don't know what to say.
[COMPLAINANT]: What do you mean?
[APPELLANT]: What do you want me to say? Like, what happened, happened.
[COMPLAINANT]: Did - why? Did you love me?
[APPELLANT]: Mmm.
…
[APPELLANT]: But I didn't love the [indistinct] what happened probably happened too early and - and, um---
[COMPLAINANT]: What do you mean? Like, all the - like sex and all that?
[APPELLANT]: Well, just, you know, what happened. You were not old enough, really?
[COMPLAINANT]: I wasn't old enough but we s - still had sex.
[APPELLANT]: [indistinct].
[COMPLAINANT]: I still sucked your dick.
[APPELLANT]: You're laughing again.
[COMPLAINANT]: '[C]ause it's just a nervous laugh. I dunno.
5.Extract 5:[67]
[67] Exhibit 8.1, 3.
[APPELLANT]: The stuff that happened, happened. I know [indistinct] why [indistinct] happened [indistinct] say that I'm very sorry that [indistinct] thing that happened [indistinct].
[COMPLAINANT]: Mmm.
[APPELLANT]: [indistinct] that's probably making anything [indistinct] things any better for you [indistinct].
[COMPLAINANT]: Nuh.
[APPELLANT]: But I dunno what [indistinct] make a bit better [indistinct] keep chatting, talking, be friends, whatever. It's entirely up to you. I'm sorry if there was any fault in your eyes.
[COMPLAINANT]: I was just so young.
[APPELLANT]: I know [indistinct] and I shouldn't have done it [indistinct] things shouldn't have happened that happened [indistinct] nothing much else here [indistinct].
6.Extract 6:[68]
[COMPLAINANT]: I just wanna know why. Like - like why'd we have sex? I was 14.
[APPELLANT]: Uh, yeah. Wasn't [indistinct]
[COMPLAINANT]: But it did.
[APPELLANT]: Yeah [indistinct] I don't know how to make things right for you [indistinct]…
[68] Exhibit 8.1, 3.
The appellant gave evidence that these extracts were not admissions to having had sex with the complainant. In effect, the appellant said that the allegations were false but, when he spoke with the complainant, he thought it best to ignore what she was saying because she was not in her right mind and had 'so much going on in her life'.[69] The appellant said that he hoped she would stop mentioning these things because they were not true.[70] In cross‑examination, the appellant conceded that he had an 'infatuation' with the complainant when she was living with him and his wife.[71]
[69] ts 352.
[70] ts 352.
[71] ts 357.
The trial judge first raised the topic of the directions he was considering giving to the jury at the end of day three of the trial prior to the close of the defence case. This included a discussion about the direction to be given in respect of the appellant's admissions in the pretext call. His Honour said:[72]
It can only be, at its highest, if they accept what the State says, an admission that there was a sexual activity. The only relevance of that is, if the jury are satisfied that he's admitting that there was sexual activity and satisfied that shows he had a sexual interest and a willingness to act on that interest and that interest still existed at the time of the counts. Then that's something that could be taken into account.
[72] ts 418.
In this passage, the trial judge was referring to whether the admissions in the pretext calls were capable of being a confession or an admission to any specific count on the indictment. Defence counsel reiterated his submission that the admissions were to generalised conduct only, rather than to any specific count, and reminded the trial judge that the defence case was that the comments made by the appellant in the pretext calls were not admissions to sexual conduct at all. [73]
[73] ts 418.

Ground 2 - the prosecution closing address

In her closing address, the prosecutor commenced by taking the jury through the relevant portions of the pretext calls. The prosecutor then stated:[74]
Now, so I can be clear, I'm not suggesting that these things evolved between [the appellant] and [the complainant] just overnight - that what occurs, the State says, is that over a period of time, [the appellant] became infatuated with [the complainant], and, regrettably, he acted on that infatuation. Now, the State says - is that when one considers the pretext call - that the only reasonable way you can interpret that call is that [the appellant] is accepting that he had sex with [the complainant].
Now - and if you do that, then I would suggest what you're going to do is that you will not accept [the appellant's] evidence. It is underpinned by a fundamental lie. Well, what do you do if you don't accept [the appellant's] evidence when he says it didn't happen? Well, you put [the appellant's] evidence to one side, because at no point in time does [the appellant] have to prove anything. The State bears the onus of proof of proving the trial, and that is to the criminal standard beyond a reasonable doubt.
[74] ts 438.
At a later stage in her closing address, the prosecutor said:[75]
But what the State says is that, look, your starting point when you consider the evidence of [the complainant] is the relationship itself. A relationship in which [the appellant] sent [the complainant] on some days up to 20 to 30 text messages, including when she was at school.
A relationship in which the only child [the appellant] ever took to his workplace was [the complainant]. A relationship in which the beautiful girl, [the complainant], [the appellant] had become infatuated in - with. A relationship that we say on the basis of a pre‑text calls establishes that he had sex with [her]. That's your framework. However, none of that proves an individual count. None of that evidence is capable of proving an individual count. What it does is establishes, we say, the relationship. What proves the individual [count] is [the complainant's] evidence.
[75] ts 441 - 442.

Ground 2 - trial judge's direction

The trial judge directed the jury regarding the pretext calls. In this regard, his Honour said:[76]
See, what the State say is this: that when you take the answers that were made in relation to the questions that were being put to him, when you take into account the remarks that he's said he loved her, but didn't love what happened, it happened too early, what happened, 'you were not ready - really old enough'. When asked, 'Why did we have sex? Things just happened. Shouldn't have done what happened', that he's, in fact, admitting that he had sexual contact with [the complainant].
Now, that's a matter for you. You appreciate that [defence counsel] says to you when you put the calls in their proper context, [the appellant] makes no such admission to having sex with her. They are matters entirely for you. But if you were satisfied beyond reasonable doubt that he was admitting that he had sexual contact with [the complainant], then the fact that he was admitting that he had sexual contact with [the complainant] is a matter you're entitled to take into account with all the other evidence in determining whether you're satisfied beyond reasonable doubt of his guilt on a particular count.
As a matter of law, having sexual contact with her could not possibly prove that he's guilty of a particular [count], but you're entitled to take that evidence into account. It might, and it's a matter entirely for you, if - if he - you do accept that he was admitting that he had sexual contact with her, and if you were satisfied that showed he had a sexual interest in her and a willingness to act upon that sexual interest, then the fact that he had that sexual interest is a matter that you're entitled to take into account in determining whether he committed the particular offence on the count that you are considering.
[76] ts 491 - 492.

Ground 2 - appellant's submissions

The appellant's argument on ground 2 is similar to that advanced on ground 1. The appellant submits that the State case was not that the pretext call was propensity evidence. Reliance on the evidence was confined to the appellant's credit and his relationship with the complainant. Accordingly, the direction given by the trial judge was contrary to the State case.[77] The appellant also complains that this direction was given without warning to the defence.
[77] WAB 13 - 15.

Ground 2 - respondent's submissions

The respondent notes that, as with ground 1, it is not contended by the appellant that the evidence of the pretext calls was inadmissible or could not be used as evidence of the appellant's sexual interest in the complainant and his willingness to act upon that interest. Rather, the appellant's argument rests upon the contention that the State did not rely on the evidence for propensity purposes and that the direction was not consistent with the prosecution case.[78]
[78] WAB 40.
The respondent submits that the appellant has mistakenly assumed that the prosecutor's use of the word 'relationship' in her closing address means that the prosecutor was invoking common law principles relating to relationship evidence.[79] However, it is apparent that the prosecutor was describing a relationship which involved the appellant having a sexual interest in the complainant that he was willing to act upon. The prosecutor was making a point about the appellant's conduct rather than giving an explanation for why the complainant behaved in a certain manner.
[79] WAB 40.
The respondent submits that the directions given by the trial judge were not contrary to the State case and did not occasion a miscarriage of justice.[80] Furthermore, the direction was not given without warning to the defence. The proposed direction was first raised prior to the close of the defence case. No objection was raised by defence counsel, either at that time or subsequently.
[80] WAB 41 - 42.

Ground 2 - the merits

It is important to appreciate that the pretext calls did not contain any response by the appellant that could be taken as being an admission of any specific sexual act. As the trial judge correctly said, at its highest, if the jury accepted the interpretation of the calls advanced by the prosecution, the evidence amounted to an admission of general sexual activity with the complainant.[81] That was a position accepted by both the prosecutor and defence counsel. Nor was there any dispute that the evidence was admissible.
[81] ts 418.
Contrary to what the appellant contends, the prosecution did rely on the pretext calls to establish that the appellant had a sexual interest in the complainant and that he had acted on that interest. That is the tenor of the submissions made by the prosecutor in closing and extracted at [67] and [68] above. The admissions could have been referring to the charged acts or to uncharged acts or both. To the extent that they related to uncharged acts, the direction was appropriate.
The direction was not given without warning to the defence. The trial judge made it clear what he understood the relevance of the evidence was and what direction would be required. Defence counsel's only concern was to ensure that the defence position regarding the interpretation of the calls was made clear to the jury. That is, there was an issue with whether the appellant had made admissions, but not with the use to which those admissions could be put. The fact that experienced defence counsel did not raise any issue with the direction either at that time or after it was given reinforces the conclusion that it accorded with his understanding of the available use of that evidence.
In the circumstances of this case the direction given by the trial judge was appropriate. The giving of the direction did not occasion a miscarriage of justice. There was no denial of procedural fairness.
Leave to appeal in respect of ground 2 should be refused.

Ground 3 - the merits

Ground 3 is, in effect, an alternative to ground 2. The appellant contends that if a propensity direction in respect of the pretext calls was appropriate, the direction that was given fell well short of what was required.[82] The appellant submits that each of the matters referred to in the particulars to this proposed ground (see [22] above) should have been covered in the direction and the failure to do so was an error of law.
[82] Appeal ts 22.
The appellant concedes that the particularised matters were covered earlier in the trial judge's directions when he was dealing with cross‑admissibility and uncharged acts (see [46] above). The appellant, in effect, submits that matters raised in the directions in relation to charged and other uncharged acts should have been repeated when dealing specifically with the pretext calls.[83]
[83] Appeal ts 24 - 26.
This ground can be shortly dealt with. The pretext calls were alleged to contain admissions about the same conduct that was the subject of the charged and uncharged acts. That is, sexual conduct that occurred when the complainant was living as a foster child with the appellant some years earlier. If the jury accepted that the appellant made the admissions, then those admissions went to prove that general sexual conduct had occurred at the relevant time. The potential use of such conduct had been addressed by the trial judge earlier in his directions. In those circumstances it is highly artificial to break up the directions into separate components. When considering whether the appellant had engaged in general sexual conduct beyond that covered by the charges, the directions, when taken as a whole, made the points that the appellant says were necessary.

When the directions are considered as a whole there is no deficiency of the kind alleged. The trial judge did not make an error in his directions. This ground has no reasonable prospect of success. For that reason, we would decline leave to amend by including this additional ground.

Conclusion

As neither grounds 1 nor 2, or the proposed additional ground, have any merit, an extension of time should be refused and the appeal dismissed.

Orders

We would make the following orders:
1.Extension of time to appeal refused.
2.Leave to appeal on grounds 1 and 2 refused.
3.Leave to add ground 3 refused.
4.Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MO
Associate to the Honourable Justice Hall
17 APRIL 2025