KHB -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 22 (11 February 2026)

1. The first ground of appeal is in the following terms:

A miscarriage of justice was occasioned by the prosecutor in her closing address making comment on the failure by the appellant to give evidence, contrary to s 8(1)(c) of the Evidence Act 1906 (WA).

Particulars

(a) In her closing submissions to the jury, the prosecutor submitted that the evidence of the appellant's wife [name removed], who was called on behalf of the appellant, should be disregarded on the basis that she 'could not lie straight in bed' and her evidence should be rejected 'in its entirety': Ts 177 ‑ 178.

(b) The prosecutor submitted that if the jury agreed with the prosecutor, the evidence of the appellant's wife should be put to one side because the appellant 'has no onus on him to prove anything': Ts 178.

(c) The prosecutor then submitted that 'the fact that his wife is prepared to lie for him and he has chosen to remain silent cannot at law strengthen the State case in any way' (the impugned comment): Ts 178.

1. Section 8(1)(c) of the Evidence Act 1906 (WA) (Evidence Act) is in the following terms:

Except as in this Act it is otherwise provided, every person charged with an offence shall be a competent but not a compellable witness at every stage of the proceedings whether the person so charged is charged solely or jointly with any other person: Provided as follows -

...

(c) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution;

1. In AJE v The State of Western Australia,[1] Mazza JA and Beech J summarised the law with respect to s 8(1)(c). They said:

The starting point is the statutory language of s 8(1)(c). It is in its terms a clear and absolute prohibition on the making of any comment by the prosecutor about the accused's failure to give evidence. The words extend to implied as well as express comment: Bataillard v The King (1907) 4 CLR 1282,1291 (Isaacs J) and Siebel v The Queen (1992) 57 SASR 558, 560 (King CJ, with whom Bollen J agreed). What is prohibited is any comment on the failure to give evidence. As King CJ explained in Siebel, this means that a comment 'whether ... fair or unfair, balanced or unbalanced, favourable or unfavourable' (at 562) cannot be made by the prosecutor. (original emphasis)

1. It is worth expanding the passage from Siebel v The Queen,[2] mentioned in the last sentence of the passage just quoted. King CJ said:

The comments made by counsel for the prosecution might quite justifiably have been made by the trial judge, but it is to be remembered that what is forbidden to the prosecution is any comment on the failure to give evidence, whether that comment is fair or unfair, balanced or unbalanced, favourable or unfavourable. The policy of the statute is to leave the decision as to what, if any, comment is to be made upon the failure to give evidence to the impartial judgment of the trial judge. (original emphasis)

The rule prohibiting comment by the prosecution upon the failure of an accused person to give evidence is a basic rule for the conduct of a criminal trial. It confers upon an accused person a right to have a trial free of the prohibited comment. The infringement of such a right cannot be lightly overlooked. I think that where such an infringement has occurred, it is necessary for the court to be more than ordinarily vigilant to ensure that the proviso is only applied where the prohibited comment could not reasonably be supposed to have affected the result. I cannot reach that state of mind in the present case and I think that the convictions must be set aside.

1. These observations were approved by Mazza JA and Beech J in AJE.[4]
2. At the commencement of her closing address to the jury in this case, the prosecutor made a number of general comments. She said:[5]

In order to prove these charges I primarily rely on the evidence of [the two stepdaughters]. You couldn't convict on any charge unless you found [the first stepdaughter], in relation to counts 1 and 2, and [the second stepdaughter] in relation to the remaining counts, to be honest and reliable witnesses.

Now, before I speak about the State case, I will deal with the evidence you've just heard from [the appellant's wife]. I submit to you that she is a witness who could not lie straight in bed.

The idea that she put internal locks on the bedrooms of young children is ridiculous, the same locks she put on her own bedroom door. She is doing her absolute best to support her husband and other children. She didn't listen to [her stepdaughters] when they were young and she is certainly not going to support them now.

She has not made any effort to contact either of them since they were young adults, and the reason for that is she knows why they left home and ceased contact with their entire family.

They told her when they were young girls and she witnessed the violence as they got older. My submission to you is that you will have no difficulty in rejecting her evidence in its entirety.

If you agree with me, you simply put her evidence to one side. That is because the accused man has no onus on him to prove anything. The fact that his wife is prepared to lie for him and he has chosen to remain silent cannot at law strengthen the State case in any way. (emphasis added)

1. It is submitted by the appellant that the statements made and emphasised in the last paragraph of the passage just quoted contravene the prohibition contained in s 8(1)(c) of the Evidence Act. In our view that is obviously correct. The prosecutor is commenting upon the fact that the accused man had not given evidence.
2. If the prohibition is breached and an accused is convicted, an appeal against conviction will usually succeed. In some cases, it may be possible for the trial judge to give directions which cure the breach. It has been said, however, that this will only be in rare cases. As was said by this court in AJE, this is because the legislature has conferred on an accused a right to have a trial free of the prohibited comment, and the infringement of that right cannot be lightly overlooked.[6]
3. The breach in this case was a serious breach. Not only did the prosecutor comment on the fact that the accused had chosen to not give evidence, she referred to the appellant's wife being prepared to lie for him. This involves an implication that the appellant had hidden behind his right to not give evidence, but chosen to adduce evidence from a person who was prepared to lie for him. That is correctly identified by the appellant's case as 'a sting' in the comment.
4. The breach went beyond a well‑intentioned reminder from a prosecutor that the appellant had merely exercised his legal right to silence (which would still amount to a breach). While dressed as a statement of the law, the comment was unfair in that it was likely to prejudice the jury against the accused for exercising his right to silence, while telling the jury the opposite. As the appellant's wife's credibility was important and at the heart of the defence case, the comment impacted on every count on the indictment.
5. In our view, it is doubtful that the breach could have been cured by a direction from the trial judge. It would have been difficult to craft a direction of sufficient weight to undo the prejudice occasioned by such a comment, without also serving to highlight it in the jurors' minds.
6. The learned trial judge gave a standard direction to the jury concerning the right to silence as follows:[7]

Now, one of the aspects of the onus being on the State is that an accused person has a right to silence, and I'm sure you have heard of the right before. The right to silence doesn't start in this court. A person who is arrested by the police has that right from the beginning, and it continues through to the trial. An accused person is not obliged to speak to the police, or to give evidence at that trial. They may do so if they wish, and you will recall at the commencement, after the prosecution closed its case, I asked [defence counsel] whether [the appellant] elected to give and/or adduce evidence in the trial, and he made his election. He made his choice that he didn't wish to give evidence, but wished to call evidence in his case, and he called [his wife] to give evidence, and you have heard her evidence this morning.

Now, you cannot draw any adverse conclusion for the exercise of the right not to give evidence, not to speak to the police. It would be a right of no value if, when a person chose to exercise it, that an adverse inference was drawn. The fact that someone chooses not to speak to the police or give evidence at their trial is not an admission of anything. It can't be used to fill any gap in the prosecution case, and it cannot be used a make weight in assessing whether the prosecution has proved its case beyond reasonable doubt.

1. Clear though the standard direction was, it did not grapple with the prosecutor's comment and address the unfairness of it in a way likely to reverse the sting in the comment.
2. Unfortunately, in later summarising the prosecution case, her Honour said:[8]

The State position is that [the appellant's wife] is not a witness of the truth. They suggest to you that she's given evidence in support of her husband. [The prosecutor] suggests to you that [the appellant's wife's] evidence that she replaced locks on each of the children's bedroom doors when they were young is fanciful.

She refers you to the evidence of [the stepdaughters] that they've had very little contact with their mother or the family since they left home. And she suggests to you that [the appellant's wife] has not had such contact because she knows the reason that her two daughters left home.

And that is because they were subject to sexual abuse which each of the girls told her about and she saw violence perpetrated upon [one of the stepdaughters]. The State's position is that you should reject her evidence and when you do, you can be safely satisfied based on the evidence of [each of the stepdaughters] beyond reasonable doubt. (emphasis added)

1. While the italicised words above are in themselves innocuous, and did indeed summarise the prosecutor's position, they may well have had the effect of reinforcing the impugned comment.
2. We note that there was no discussion between counsel and the learned trial judge concerning the comment before her Honour charged the jury and how it might be dealt with. However, this is not a case in which the failure of counsel then representing the appellant to complain of the comment carries any weight in the appellate process. The comment was a breach of a statutory prohibition.
3. The respondent in this appeal, upon consideration of the appellant's case, concedes that the impugned comment of the prosecutor contravened s 8(1)(c) of the Evidence Act, and does not seek to rely upon the proviso. The respondent has abandoned reliance upon the proviso, because it accepts that this court could not be satisfied on an analysis of the record that the appellant has been proven guilty of the offences beyond reasonable doubt. That is because any conclusion of guilt must necessarily depend upon the assessment of the credibility of the witnesses.
4. For these reasons, the State's concession is properly made. The appeal should be allowed, and a retrial should be ordered.

1. Count 7 of the indictment alleged that on a date unknown between 2 February 2003 and 17 December 2004 the appellant unlawfully assaulted [one of the stepdaughters] and thereby did her bodily harm, in circumstances where he was in a family and domestic relationship with [that stepdaughter], contrary to s 317(1) of the Criminal Code (WA) (Code).
2. Ground 3 relates to the circumstance of aggravation alleged in respect of Count 7, ie that the appellant was in a family and domestic relationship with his stepdaughter at the time of the alleged offence. However, the relevant provision in the Code specifying the circumstances of aggravation only came into effect on 1 December 2004, towards the very end of the pleaded date range for Count 7.
3. The evidence at trial did not establish that the offence occurred on or after 1 December 2004. In those circumstances, the circumstance of aggravation could not be established. It may be that additional evidence could be adduced at the retrial to prove the circumstance of aggravation. However, the State should not be permitted to rectify deficiencies in the evidence adduced at trial. It follows that, separately from ground 1, the circumstance of aggravation alleged in Count 7 should not be included in the indictment before the jury in the retrial.

1. In the circumstances, it is unnecessary to address ground 2 of the appeal.
2. In these circumstances, the orders shall be as follows:
   1. The appellant's application for an extension of time within which to appeal is granted.
   2. The application for leave to appeal on grounds 1 and 3 of the appeal is granted.
   3. The application for leave to appeal on ground 2 is dismissed.
   4. The appeal is allowed, and the appellant's convictions on counts 1 to 7 on indictment 715 of 2022 are set aside.
   5. The Family Violence Restraining Orders Nos DC/CIV/PER/RO/91/2023 and DC/CIV/PER/RP/92/2023 are set aside.
   6. There shall be a retrial of counts 1 to 7 on indictment 715 of 2022, save that the appellant's retrial on count 7 should not include the alleged circumstance of aggravation.
   7. The appellant shall personally appear before a Judge of the District Court of Western Australia on Friday 20 February 2026 at 10.00 am.

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

[1] AJE v The State of Western Australia [2012] WASCA 185; (2012) 225 A Crim R 242 [30].

[2] Siebel v The Queen (1992) 57 SASR 558, 562.

[5] Transcript, The State of Western Australia v [KHB], District Court of Western Australia, 16 March 2023, 177 ‑ 178 (ts).