SNOOK -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2024] WASCA 135 (4 November 2024)

Now, during the course of the trial, you are likely to hear more evidence about touching of the - [the complainant's] testicles on other occasions as well. I just want to explain, you've just got to consider the evidence in relation to the charges themselves. That's - they're representative of the overall conduct, so not everything is presented for you as a charge, but just consider the charge as you consider any other evidence in relation to that as part of the conduct as well.

1. The State also relied on propensity evidence in the form of two prior indecent dealing offences by the appellant. The circumstances of those prior offences were not in dispute. The first of them occurred in 1993 and involved the appellant touching the penis of a 9‑year‑old boy whilst the child was in bed. The second conviction related to a half‑brother of the first child, who was between 12 ‑ 14 years old at the relevant time (this offence occurred between 1 January 1993 and 31 December 1994). On this occasion, the child fell asleep on a mattress in the appellant's bedroom and woke up to find the appellant masturbating his penis.[7]

1. The counts on the indictment were as follows:[8]

(1) On or about 20 May 1993 at Bunbury Timothy Daniel Snook indecently dealt with [the complainant], a child under the age of 13 years, by touching his testicles.

(2) On a date unknown between 1 June 1993 and 10 June 1993 at Bunbury Timothy Daniel Snook indecently dealt with [the complainant], a child under the age of 13 years, by masturbating his penis.

(3) On the same date and at the same place as count (2) Timothy Daniel Snook sexually penetrated [the complainant], a child under the age of 13 years, by penetrating his anus with his finger.

1. The defence case was that the alleged acts had not occurred. The appellant admitted that he was employed as a registered nurse at the hospital at the relevant time. There was no dispute that he had come into contact with the complainant. However, the appellant denied that he had indecently touched or penetrated the complainant as alleged.[9]
2. As regards the prior offending, the appellant did not deny that offending but submitted that it was significant that when he had faced similar allegations in the past, he had admitted his wrongdoing.[10]

1. The grounds of appeal are as follows:[11]
   1. There was a miscarriage of justice occasioned by the convictions on [c]ounts 2 and 3 because the evidence led in support of those [c]ounts revealed multiple offences fitting the same description that were never particularised.
   2. The learned trial Judge erred by directing or ordering the appellant after he completed his evidence in chief and before cross‑examination commenced that he was not permitted to speak to anyone about the evidence he had given or the evidence he might give.

1. As the appellant was acquitted of the first count, which was alleged to have occurred during the complainant's first admission to the hospital, it will only be necessary to refer to his evidence regarding counts 2 and 3 and his second admission to the hospital.
2. The complainant said that in June 1993, after his discharge for the groin injury, he went back to hospital because he was suffering from asthma. He was taken by his father to the emergency department at Bunbury Regional Hospital and was then admitted and taken to a children's ward. He was required to wear a gown, under which he just wore underwear. He was in a room with four beds and there were two other children in the room when he arrived. He remained in the hospital on this occasion for about a week.[12]
3. The complainant recognised the appellant as one of the nurses who had attended to him on the previous admission. On the second admission, the appellant was '[r]eally, really friendly' and was 'just always there'. The complainant could not recall any other male nurses on the ward other than the appellant.[13]
4. The complainant was then asked:[14]

And did he visit your room on the first night that you were admitted?---I remember from memory he did, yes.

Okay. And what happened?---It was much the same as the last time I described. I remember him saying that he wanted to check on the injury from last time and I can remember thinking at the time that that was a bit weird but I just figured that's what he had to do and he - he did the same thing, he - he pulled my gown up and he did the same thing.

And when you - sorry, [the complainant], when you say 'The same thing' are you able to tell us what that was?---Yeah. He - he pulled the gown up and he pulled my underwear down and he played with my penis and my testicles again. He did the same thing, he was asking, you know, how it felt. I remember him saying 'How does that feel?' I just remember him doing that.

1. A little later, the complainant said:[15]

You said you were in there for about a week and you've just told us about Night 1. What - what happened subsequently?---So he - Tim would come in most - most nights that I remember, but I think it was the second night he did a little bit more. Can I take a break?

1. After a short break, the complainant went on:[16]

[The complainant], just before the break, you said - you were talking about the next occasion - you were saying a little bit more?---Yes.

What happened?---He did the same thing. He pulled my - my gown up and my underwear down and he played with my penis and my testicles. At this time I felt his - his other hand that was playing with my testicles slide down - - -

I'll just - I'll just stop you there, for a (indistinct). You said he played with your penis and your testicles. What do you mean by he played with them?---He was rubbing them the same as last time. And this time he - he slipped a finger down and I just - I just felt like the tip of it go in - into my anus and then he was gently rubbing my penis up and down at the same time. And he was moving his finger around.

Was this happening with one hand or both hands?---Both hands, because one - he had one on my penis and the other one, he was playing with my testicles and his finger - - -

Sorry, [the complainant]. I know this is hard, but if we can - just going back to the beginning of that. So what was he doing first in terms of - you saying he was playing with your testicles and your penis?---He was caressing them, he was rubbing them. He was saying, 'How does it feel?' Much the same as last time.

Is this just your testicles or your penis as well?---Penis and testicles, and then I felt his hand go down and the tip of his finger go into my anus, and then I - that's when he then started rubbing my penis a bit more with his hand around it, which was a bit different. Before he - it wasn't just caressing, it's like he was rubbing it with his hand wrapped around it.

And did this affect your penis?---I don't really remember.

Now, you said you felt the tip of his finger enter your anus?---Yes.

Okay. What did you feel then?---I just felt him moving around a little bit, wiggling it.

And was that inside your anus?---A little bit, only a little bit, but yes. It was like the tip. It didn't hurt, but I remember it.

And how long did this - - -?---He did that for maybe 30 seconds.

Now, is that your memory in terms of length of time, or - - -?---Yes, that's my memory in terms of length of time. He was in there for a few minutes, and that part in particular was probably about 30 seconds or so.

Again, what were you doing and saying that this time?---I was just laying there. I wasn't really doing anything. I was a little bit - I was uncomfortable.

When did it stop?---He was in there for a few minutes, some - maybe five minutes or so. That's how long I remember it being, a few minutes.

And when it stopped, what happened then?---He just left - he just left. He just pulled my pants back up and then he just left.

So you said you were in there - this admission for about a week. So in terms of that week, are you able to say which night this was?---From memory, it was the second night. It wasn't the first night that he did that.

And what about the subsequent nights?---I remember him coming in pretty much every night.

And when you say you remember him coming in every night, what's that in relation to?---He just did the same thing. Each night he would come in and he would do that again, the same things. He - - -

And when you say 'the same things'?---He would play with my penis and my testicles and he would put the tip of his finger into my anus.

Are you - are you able to say how many times this happened?---It - it - I remember it being every night and I think I was there for about a week so six or seven times.

1. In cross‑examination, the complainant was asked about what had happened in the second admission:[18]

In that first night you were on that ward you say that's when something happened again?---That's correct.

And on that first night you say something happened again, it was with the same nurse, Tim?---Yes.

And he came in and he touched your testicles again?---Yes.

And it happened every night after that; is that right?---That's how I remember it, yes.

But on the second night he did a bit more?---Yes.

And that included putting his hand around your penis and rubbing it; is that correct?---Yes.

And putting the tip of his finger in your anus; is that correct?---Yes.

1. Later in cross‑examination, the complainant was asked:[19]

Now, I'm going to move from the first admission to the second admission in June?---Mm mm.

Do you agree that yesterday you said that - that all of the acts occurred at night?---Yes.

That you would be woken up?---I don't - I don't recall if I was woken up for all of them. I remember it was night‑time, I was woken up for some of them - some of them I may already have been awake. It's really hard to remember the specifics to that level from 30 years ago.

And it occurred every night?---I recall it recurring every night, yes.

And you said, in relation to the second night, that he put the tip of his finger into your anus?---Yes.

Is that correct??---Yes.

And is it the case that you said that you remembered that happening every night?---I remember it happening - yes, after that, every night.

And - - -?---On multiple nights.

And by that, you're referring to putting the tip of his finger - - -?---Yes.

- - - into your anus?---Yes.

Do you accept that you have previously said that it only occurred the one occasion?---I can't recall what I said.

1. A short time later, the complainant was asked:[20]

Now, I was just asking you about the tip of your - how - yesterday, you said that Tim put the tip of his finger into your anus, and that that occurred every night?---Multiple times - it's really hard to say whether something was every single night. I don't - but I know that it was more than once, and it wasn't on the first night, and I said that yesterday.

Yes, [the complainant] - your evidence was that it was the second night?---Yes.

And you have just said it was more than one occasion?---Yes.

1. The cross‑examination then turned to the appellant's witness statement and it was put to him that in that statement he had said that there was one occasion when the appellant touched him during the second admission. The complainant did not accept that proposition and maintained that there had been more than one occasion.[21] That issue was also raised in re‑examination:[22]

And in relation to the - on the second admission - - -?---Yep. Yes.

- - - it was put to you that you'd mentioned that the incident in relation to the touching of your testicles and penis and your anus only happened once?---That was put to me, yes.

How many times did it happen?---It happened more than once. It happened multiple times. But on the first night, I remember because he was cupping in there. His finger just slipped down. I remember that.

1. In closing, the prosecutor referred to the second admission and counts 2 and 3 in the following terms:[23]

[The complainant] said about the incident - he said it wasn't the first night that he did it. Coming in pretty much every night, he would do it again. Now, he then reasoned - [the complainant] then reasoned from the circumstances, it happened about six or seven times because of the time he was there. We don't know exactly how many times this occurred. But consistent - but he also said he remembers Tim saying he wanted to check on the injury from last time. He remembered thinking, at the time, that that was a bit weird, but he just figured that that's what he had to do. And he did the same thing.

1. Later, in his closing address, the prosecutor said:[24]

[The complainant] also told you it happened at least - in relation to count 1 it happened at least three times. Now, there's only one - so if you look at count 1 we're just talking about that it happened. So as long as you're satisfied that it did happen for the elements of count 1 or count 2 and count 3, then the State is not asking you how many times it did happen. So if you're satisfied in that period that those things happened and it meets the elements of each count, then the State's proved its case. (emphasis added)

1. The prosecutor went on to refer to the evidence that related to each of the counts. In relation to counts 2 and 3, the prosecutor read to the jury those parts of the complainant's evidence in which he described the events that occurred on the second night of the second admission. He then told the jury that they had to be satisfied that 'those acts' did in fact happen.[25]

1. The trial judge gave the following relevant directions:[26]
   1. He told the jury that the date and place specified in the indictment was required to identify the occasion on which the alleged offence is said to have occurred with enough detail to allow an accused person to meet the charge or charges against them.
   2. He told the jury that each of the elements of the offences must be proven beyond reasonable doubt.
   3. He told the jury that an element of count 2 was that the appellant dealt with the complainant and that an element of count 3 was that the appellant penetrated the complainant.
   4. In addressing the evidence relevant to the element of indecent dealing in count 2, the trial judge said:[27]

And for count 2 [the complainant] stated that during his second admission in June, Tim the nurse came into his room. And counsel, I'm going to page 91 of the transcript. And he said:

He pulled my gown up and my underwear down, and he played with my penis and my testicles. At this time, I felt his - his other hand, that was playing with my testicles, slide down.

I'll just - I'll just stop you there. You said he played with your penis and your testicles, what do you mean by 'he played' with them?---He was rubbing them, the same as last time.

And he went on in his evidence, and counsel this is on page 92, to say:

He was caressing them. He was rubbing them. He was saying how does it feel. Much the same as last time.

Is this just your testicles, or your penis as well?---Penis and testicles. And then I felt his hand go down and the tip of his finger into my anus.

But I'll come back to that in terms of count 3. And he went on to say:

It wasn't just caressing with his penis, it's just like rubbing it with his hand wrapped around it.

1. In relation to count 3 and the element of penetration, the trial judge identified the relevant evidence in the following terms:[28]

Now, the accused man denies that he committed the act the subject of this count. That is to say he, again, says it just never happened. On the other hand, the State says that the accused man dealt with [the complainant] in the way in [the complainant] described in his evidence. In this regard [the complainant] stated that when Tim, the nurse, played with [the complainant's] penis in the way described that:

This time he slipped a finger down. I just felt the tip of it go into my anus and then he was gently rubbing my penis up and down at the same time. And he was moving his finger around.

And he later said in his evidence that he felt the nurse, Tim, moving around his finger a little bit, or wiggling it, and that it lasted for about 30 seconds.

He said the nurse Tim was there, and that he remembered Tim being there regularly, and being really friendly and chatty. He described what happened for counts 2 and 3. And I've already gone over that evidence, so I won't repeat it. When asked who else was in the room when the acts the subjects of counts 2 and 3 occurred, he said:

I would assume the other children were in there -

1. The trial judge directed the jury that they had to decide, on the whole of the evidence, whether the prosecution had established beyond reasonable doubt that the appellant had committed the specific act as alleged in that charge. His Honour then went on to refer to how the jury could use other uncharged acts:[30]

You cannot convict the accused man, [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.

Now, [the complainant] also gave evidence about other conduct that occurred during the course of his hospital admissions which is not the subject of any charge on the indictment.

Relevantly, he stated that during the course of the first admission, that is the May admission. He said that the (indistinct) came in a few times, maybe three times. And that when asked what would happen each time, he would do the same thing.

That is, he described as having occurred the subject of count 1 on the indictment. He also stated that during the course of the second admission, on the first night, the nurse Tim came into the room and did the same thing as he remembered [from] the May admission. And he also said that subsequent to the second night, so that is after the night that he said nurse Tim did the acts, the subject of counts 2, 3.

That nurse Tim would come in every night and do the same thing. He said that he remembered it being every night for about a week, so six or seven times, or on multiple nights. Now, the State led that evidence as part of the overall context of what occurred whilst [the complainant] was in hospital during two admissions. You could only use this evidence of other acts if you find it truthful and accurate. And if you do find that evidence of [the complainant] to be truthful and accurate, you can consider that evidence along with all of the other evidence to decide whether the State has proved the charges on the indictment against the accused man beyond a reasonable doubt.

And you should always remember that your task is to decide on each charge, whether the State has proved the particular charge you are considering, beyond a reasonable doubt. I do, however, need to direct you how you cannot use that evidence of other acts. The other acts that occurred on the other occasions when nurse Tim went into [the complainant's] room are not acts relied upon as part of the counts of the indictment.

1. The appellant submits that the evidence led at the trial was capable of establishing that numerous offences had occurred during the period of the second admission, and that any one of them could fit within the description of the offences for which the appellant was convicted on counts 2 and 3. The appellant contends that the prosecutor failed to identify with precision which acts, occurring in the second admission, were the subject of counts 2 and 3. The effect of this was that the convictions on those counts suffered from latent duplicity because there could be no certainty which of the acts the jury had found proven or indeed, whether they were unanimous in respect of any of them. The appellant relies on S v The Queen[31] and Jones v The Queen.[32]
2. The appellant submits that the prosecutor did not attempt to explain, particularise or differentiate the charged conduct from other conduct, of which it was said to be a representative sample, in his opening address. The complainant's evidence left open the possibility that acts meeting the description of the indecent dealing referred to in count 2 and the sexual penetration referred to in count 3 had occurred on multiple occasions during the second admission.[33]
3. The appellant says that the lack of particularisation was compounded by the prosecutor's statement to the jury during his closing address that it was sufficient if the jury was satisfied that 'those things happened' at some time during the period alleged. The appellant contends that the prosecutor did not make clear what was said to be a charged or an uncharged act and his closing address appeared to suggest that everything was a charged act, and this also led to uncertainty in the verdicts of guilty.[34]
4. The appellant submits that the trial judge's directions also failed to specify which alleged acts were the subject of counts 2 and 3. It is submitted that the directions regarding the uncharged acts did not resolve the problem but highlighted the unfairness to the appellant and the uncertainty of the verdicts.[35]
5. The appellant submits that the jury were effectively asked by the prosecutor and the trial judge to approach their task by determining whether an indecent dealing and sexual penetration occurred at any time during the second admission. It is submitted that it is likely, in these circumstances, that the jury reached their verdicts not by reference to an event that could be identified with precision but on the basis that the appellant was a person likely to commit this type of offence.[36]

1. The respondent accepts that the statement made by the prosecutor in closing (extracted at [26]), to the effect that it was sufficient if the jury were satisfied that acts meeting the elements of the offence occurred at some time during the period of the second admission, was erroneous and should not have been said.[37] That concession is plainly correct.
2. However, the respondent submits that it was plain from the outset that counts 2 and 3 related to the incident on the second night of the second admission and that any other acts that occurred on other days during that second admission were uncharged acts. Any possible confusion raised by the prosecutor's comments was cured by the directions of the trial judge. Those directions made it plain that the evidence given by the complainant regarding the second night was the evidence that related to counts 2 and 3.[38]
3. Furthermore, the directions given in regard to uncharged acts made that distinction plain and referred to all other acts during that admission as uncharged acts and explained how that evidence could be used. In these circumstances, there was no reasonable possibility that the jury would have been under any misapprehension as to what acts were alleged to constitute counts 2 and 3 and what evidence related to those counts.[39]

1. A charge in an indictment must allege one offence only.[40] A charge which, on its face, alleges more than one offence is bad for duplicity.[41]
2. The rule against duplicity is founded on considerations of fairness and the orderly administration of justice. As a matter of fairness, an accused person should know what case he or she has to meet. A court must know what the charge is in order to ensure that evidence is properly admitted and to instruct the jury properly as to the law to be applied. In the event of conviction there should be certainty as to the offence for which the defendant is to be punished and the record should be clear so that the defendant can, if the need arises, avail himself or herself of a plea of autrefois acquit or autrefois convict.[42]
3. A similar problem may arise where, although the charge refers to only one offence, the evidence discloses a number of acts; any one of which could constitute the offence. This issue has been referred to as latent duplicity or latent ambiguity - latent because the problem is not apparent from a reading of the charge, but only on consideration of the evidence. Such an ambiguity may require that particulars be provided by the prosecution to identify with precision the act which is alleged to constitute the offence.[43]
4. In Johnson v Miller, Dixon J said: [44]

In my opinion [the prosecutor] clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.

1. Where the evidence refers to multiple acts which could amount to an offence, it is necessary to make clear what act (or acts) are said to constitute the offence and which are said to be similar acts relied on for some other evidential purpose. Those other similar acts should not be left to the jury on the basis that satisfaction of any one of them could prove the charge.[45]
2. Whether a charge has been adequately particularised is a matter of judgment to be determined having regard to the circumstances of the particular case. As a minimum requirement, there should be sufficient particularity in the allegations to demonstrate that one identifiable act meets the description of the offence charged and is distinguishable from other similar acts referred to in the evidence.[46]
3. Where there has been no complaint about the formulation of the charge and no allegation of a wrong decision on a question of law by the trial judge, a ground of appeal that relies on latent ambiguity must establish that there was a miscarriage of justice. Whether there has been a flaw in the trial such as to amount to a miscarriage of justice is a matter of substance, not technicality. The appellant in a case like the present needs to show that the trial was unfair, either because he was prejudiced by not knowing what the case against him was or because the verdict is ambiguous. Those issues must be determined having regard to the whole of the trial record, including the charges in the indictment, the addresses of counsel, the evidence and the directions of the trial judge.

1. The starting point must be the words of the relevant charges, that is counts 2 and 3. Count 2 alleged an indecent act, namely the masturbation by the appellant of the complainant's penis. Count 3 alleged an act of sexual penetration, namely the penetration by the appellant of the complainant's anus. Each count alleged a single offence. Count 2 was alleged to have occurred on a date unknown between 1 and 10 June 1993 in Bunbury. Count 3 was alleged to have occurred 'on the same date and at the same place'. It was clear from this that both acts were alleged to have occurred as part of a single incident on the same day.
2. In his opening address to the jury, the prosecutor said that counts 2 and 3 occurred during the second admission but did not specify on which day of that admission they had occurred. The prosecutor also referred to evidence of other similar acts occurring 'on other occasions' and that the conduct that was the subject of the charges was representative in nature. From this, it can be inferred that the charges related to one incident and that other conduct was relied on as propensity or relationship evidence.
3. The complainant's evidence was that an act of touching his penis had occurred on the first night of his second admission, but that there had been no act of penetration at that time. Furthermore, his description of the touching did not fit the allegation of masturbation. Thus, that act could not be the subject of count 2. The complainant then went on to say that on the second night, the appellant had put his hand around his penis and rubbed it, before going further and penetrating his anus with a finger. This evidence met the description of the offences in counts 2 and 3. The only possible difficulty is that the complainant went on to say that the appellant had touched him in the same way on every subsequent night of the second admission. There was, however, no detail of those subsequent occasions.
4. The closing address of the prosecutor referred to the evidence relating to the second night of the second admission when dealing with counts 2 and 3 and told the jury that they had to be satisfied beyond reasonable doubt of those acts before convicting on those counts. However, the prosecutor also suggested to the jury, at a different point in his address, that it was sufficient if the jury were satisfied that acts of the relevant type had occurred at some point during the second admission.
5. The closing address of defence counsel in relation to counts 2 and 3 focused on the hospital records. Counsel submitted to the jury that the appellant had only limited opportunity to touch the complainant, as he was only on an afternoon shift on two occasions during the second admission. Those occasions were 3 and 7 June 1993 (when the appellant made notations in the records). On other occasions, the appellant was on a morning shift or there was no record of him being on duty. Counsel suggested that this was relevant in assessing the complainant's evidence that sexual touching had occurred on every night of the second admission.
6. The trial judge directed the jury as to the relevant evidence relating to each of the counts. In regard to counts 2 and 3, his Honour told the jury that the relevant evidence in regard to those two counts was the evidence the complainant gave regarding the second night of the second admission. His Honour read those parts of the evidence to the jury. Further, when referring to the use that the jury could make of the other uncharged acts, his Honour referred to those acts as being 'subsequent to the second night, so that is after the night that he said nurse Tim did the acts, the subject of counts 2, 3'.
7. This was not a case where the evidence revealed several acts that were described with the same level of detail and precision, any of which could meet the description of the offences charged. Rather, the evidence of the complainant described the events of the second night in detail and then merely referred to similar acts having occurred on other nights during that same admission. In these circumstances, it was plainly apparent that counts 2 and 3 referred to the acts that occurred on the second night and that other acts of touching on subsequent nights were relied on for other evidential purposes.
8. That was certainly what all involved in the trial, including the appellant's trial counsel, apparently assumed. Counsel at the trial cross‑examined the complainant on the apparent understanding that the evidence he gave regarding the second night related to counts 2 and 3. Furthermore, counsel did not raise any concern regarding latent ambiguity or duplicity, nor seek further particulars of the charges. It is not apparent that the appellant did not know the case against him or was in any way prejudiced in his defence.
9. Nor is there any reasonable possibility that the verdicts on counts 2 and 3 relate to anything other than the conduct on the second night. It would be fanciful to suppose that the jury (or any of them) might have a reasonable doubt regarding the detailed evidence of the second night but be satisfied beyond reasonable doubt that such conduct had occurred on a subsequent night, given that there was no detail to distinguish any of those subsequent occasions.
10. It would have been preferable had the prosecutor stated with precision from the outset that counts 2 and 3 occurred on the second night. It would also have been preferable had the prosecutor not made the erroneous comment that he did in closing address, and the trial judge had corrected that comment. Nonetheless, the directions given by the trial judge were plainly adequate to direct the jury that it was the conduct that occurred on the second night that constituted counts 2 and 3. The trial judge's further directions regarding uncharged acts put that position beyond doubt.
11. Cases in which latent ambiguity or duplicity is an issue are fact‑specific. In the circumstances of this case, there was no realistic possibility that the jury would think that counts 2 and 3 related to anything other than the conduct that occurred on the second night. The verdicts on those counts do not suffer from latent ambiguity. A miscarriage of justice has not been established.
12. Whilst we would grant leave in respect of this ground of appeal, it does not succeed.

1. Before turning to ground 2 it is necessary to say something about the sentencing proceedings.
2. The appellant sought to derive some assistance from the fact that in the sentencing proceedings, an issue was raised as to whether count 2 related to the events described by the complainant as having occurred on the first night. This issue arose in the context of a submission by defence counsel that counts 2 and 3 had occurred as part of the same incident. That submission, which was supported by the way in which the trial had been run, was opposed by the prosecutor, presumably because he wished to submit that the offences were not isolated incidents but part of a course of conduct.
3. During sentencing, his Honour made a finding that count 2 had occurred on the first night and count 3 had occurred on the second night. However, he also made a finding that the second night incident included the other act of touching which had been alleged.
4. The appellant submitted that the finding of the trial judge reinforces the argument that there was latent duplicity in the indictment. It is contended that the fact that the trial judge made the finding he did shows that the prosecution case was not adequately particularised and that multiple acts were capable of constituting count 2.
5. The findings of a sentencing judge occur after verdict and are not determinative of the way in which a jury has approached its task. In the present case, it is somewhat surprising that the trial judge made the finding that he did. Given the way in which the jury was directed, the only finding open to the trial judge that was consistent with the jury's verdicts was that counts 2 and 3 had occurred at the same time. Indeed, the indictment alleged that those acts occurred on the same day. It was not open for the trial judge to make the finding that he did, nor should he have been encouraged to do so by the prosecutor. Defence counsel was plainly correct to submit that counts 2 and 3 occurred on the same day.
6. The issue of whether the incident on the second night was an isolated incident should have been dealt with by determining whether the uncharged acts had been proved. The trial judge found that the other touching that occurred on the second night was proved in any event. Accordingly, on any view the second night incident was not isolated.
7. It should also be noted that there is no appeal against sentence, and it is unlikely, given the other findings made by the trial judge, that the error in that finding could have affected the sentence. The only relevance for present purposes is what impact this finding has on the suggestion that the indictment was bad for latent duplicity. For the reasons we have given, it is irrelevant to that question.

1. The appellant gave evidence in his own defence. He completed his evidence‑in‑chief at the end of the second day of the trial. The trial was then adjourned to the following day, at which time the appellant's cross‑examination was to commence.
2. Before adjourning the trial, the trial judge directed the appellant in the following terms:[47]

And, [appellant], you're still under oath so you can't discuss your evidence with anyone else?---Yes, your Honour.

That includes the evidence that you've given and the evidence that you might give tomorrow. Do you understand?---Yes. Yes, sir.

And that would include discussing it with [defence counsel] and any friends or family?---Yes.

1. The appellant submits that the direction given to the appellant not to discuss his evidence with anyone was wrong at law. Given that the appellant had not commenced his cross‑examination, there was no prohibition on him discussing his evidence with his lawyers or anyone else.[48]
2. It is not suggested that there was need for the appellant's lawyers to discuss his evidence with him. Nor is it suggested that any specific prejudice arose from this erroneous direction. Rather the appellant says that it caused him to be isolated and vulnerable at a time when he may have wished to seek the solace and comfort of speaking to friends. The appellant contends that the direction breached a fundamental presupposition of a fair trial.[49]

1. The respondent submits that a wrong decision on a question of law by a judge includes a misdirection on matters of subjective and adjectival law.[50] In DKA v The State of Western Australia, Buss P and Mazza JA said that this refers to a wrong decision on a material point of law. In the same case, Mitchell JA considered that it was at least arguable that the court would only allow an appeal under s 30(3)(b) of the Criminal Appeals Act 2004 (WA) if in its opinion the conviction should be set aside because of that decision. This at least arguably imports a requirement of materiality. Mitchell JA concluded that 'where there is no reasonable possibility that the decision could have had any effect on the jury's deliberations, it will be immaterial and will not justify setting aside the convictions'.[51]
2. The respondent submits that even if the trial judge's direction to the appellant was wrong, any possibility that it could have affected the outcome of the trial is fanciful. In those circumstances, there would be no justification for setting aside the convictions.[52]

1. It is common practice for trial judges in this State to give a direction to a witness who is under cross‑examination to not discuss their evidence with others during adjournments. The power to give such a direction derives from the inherent power of the court to control its own proceedings and to ensure that a trial is fair.
2. The direction is intended to guard against the possibility that the evidence of the witness would be tainted by discussions with others at a critical point in their testimony. The risk is that a witness under cross‑examination may be influenced, consciously or subconsciously, to change their evidence or their demeanour, correct errors, withdraw concessions or improve on weaknesses that have been exposed in cross‑examination. This would give the witness concerned an advantage over other witnesses who do not have the benefit of an adjournment and could unfairly undermine the effect of cross‑examination. Credibility assessments of witnesses often depend critically on the performance of the witness under cross‑examination. That assessment assumes that the witness will not have the benefit of any external assistance.
3. The direction is also protective of counsel, who may otherwise come under pressure to discuss with a witness the progress of their cross‑examination to that point. That risk would be particularly acute in the case of an accused person under cross‑examination in a criminal trial. The giving of a direction in open court provides an assurance to the jury that the witness will not have the benefit of being coached or 'phoning a friend' during the adjournment.
4. The direction usually extends to discussing the evidence with any person. That includes counsel who called the witness. Lawyers are, in any event, bound by professional obligations not to confer with a witness under cross‑examination except in limited specified circumstances. That practice is reflected in rule 26 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (WA) (Conduct Rules), which states:

Communication with witnesses under cross‑examination

26.1 A solicitor must not confer with any witness (including a party or client) called by the solicitor on any matter related to the proceedings while that witness remains under cross‑examination, unless -

26.1.1 the cross‑examiner has consented beforehand to the solicitor doing so, or

26.1.2 the solicitor -

(i) believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference,

(ii) has, if possible, informed the cross‑examiner beforehand of the solicitor's intention to do so, and

(iii) otherwise does inform the cross‑examiner as soon as possible of the solicitor having done so.

1. The existence of this ethical obligation has caused a question to be raised as to the necessity for a direction that prohibits counsel from speaking to a client whilst under cross‑examination.[53] However, the power of the court to give such a direction has not been doubted. Furthermore, the ethical obligation does not provide protection against discussions with other people.
2. In International Relief and Development Inc v Ladu,[54] Kenny J dealt with an application by counsel for leave to confer with his client after cross‑examination was completed. The apparent purpose was to speak to the client for the purposes of re‑examination. Kenny J noted that the relevant Bar Rule (which was in the same terms as r 26 of the Conduct Rules referred to at [75]) was confined to cross‑examination. That was to be contrasted with the position in some other jurisdictions that extended to a prohibition on out of court communication during the whole of the witness's evidence.
3. In the New South Wales case of Potier v The Queen,[55] a prosecution witness had commenced her evidence, but cross‑examination had not yet started. During an adjournment the witness contacted the prosecutor to advise of additional evidence she could give. On an appeal against conviction, the unrepresented appellant complained about what had occurred. Ward JA (with whom Simpson and Wilson JJ agreed) said that the complaint was misconceived because what was prohibited under the relevant Bar Rule was conferring with a witness under cross‑examination.
4. There have been cases in which an issue has arisen as to whether out of court communication with a witness under cross‑examination has caused unfairness.[56] However, the appellant did not refer to any case in which it was suggested that a direction to a witness not to communicate with others about their evidence had been wrongly given.

1. In our view, the trial judge had a power to give a direction to the appellant not to discuss his evidence with any person once he had commenced cross‑examination. Whether he had a power to do so before that point was reached must be doubted. Even if such a power existed, the circumstances in which it would be exercised must be very rare. The reasons underpinning a direction once cross‑examination commences (which we have referred to at [73] ‑ [74]) do not apply before that point. Furthermore, there are countervailing considerations, particularly in the case of an accused giving evidence. An accused person should not be restricted from discussing the progress of their case with others, particularly their counsel, except to the extent necessary to ensure that the trial remains fair. That favours a conclusion that any direction should, at least generally, be confined to cross‑examination. This would also reflect the terms of the ethical obligation referred to at [75].
2. The direction given to the appellant in this case was not appropriate and should not have been given. It deprived the appellant of an opportunity to discuss the case with his counsel. In some circumstances, that could be prejudicial to an accused person. However, in the present case, defence counsel did not raise any issue with the trial judge. Furthermore, it is not suggested on the appeal that there was any actual prejudice to the appellant. Counsel for the appellant said that consideration had been given to seeking to adduce additional evidence on this issue but that a decision had been made not to do so. The only prejudice was said to be that the appellant was unnecessarily isolated and did not have the comfort of speaking to friends or relatives about his evidence during the overnight adjournment.
3. Clearly, the erroneous direction to the appellant was not one that was capable of affecting the verdict of the jury. No attempt was made to argue that it could possibly have that effect. The giving of the direction was not, in that sense, a material wrong decision on a question of law.
4. This ground of appeal relies on s 30(3)(b) of the Criminal Appeals Act 2004 (WA) in asserting that the convictions should be set aside because of a wrong decision on a question of law by the trial judge. There is a live issue as to whether such a ground involves a threshold requirement of materiality. That is, only errors that are capable of affecting the outcome of a trial are sufficient to justify appellate intervention. There is some support for the existence of such a materiality requirement, including in this court.[57] However, there are decisions from other jurisdictions in respect of similar provisions that have concluded to the contrary or left the matter undecided.[58] If there is a materiality requirement the appellant's case would fail at that hurdle for the reasons given at [82]. However, it is unnecessary to finally determine that question because even if there is no materiality requirement, this ground fails at the next stage in any event.
5. If a ground of appeal against conviction might be decided in favour of the appellant, this court can dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[59] That question requires consideration of the whole of the trial record and the nature and effect of the trial judge's wrong decision on a question of law. Where the error occurs in the context of a trial by jury, deciding whether there has been no substantial miscarriage of justice necessarily invites attention to whether the verdict might have been different if the identified error of law had not occurred.[60] There may also be some errors that amount to such a serious breach of the presuppositions of a fair trial as to deny the application of the proviso.[61]
6. In the present case, the direction given to the appellant not to speak to anyone about his evidence could not possibly have affected the jury. The direction was not given to the jury and said nothing about the evidence of the appellant or how it should be approached by the jury. There was no implication in the direction that the appellant was, in any respect, an untrustworthy witness. The fact that a direction in almost identical terms was given to another witness (the complainant) would have conveyed to the jury that this was a routine matter and not something that reflected on the appellant. There is no possibility that the verdicts would have been different if the error had not occurred.
7. At the hearing of the appeal, the appellant accepted that no prejudice could be identified and sought to advance an alternative proposition that the direction breached a fundamental presupposition of a fair trial. In effect, the appellant asserted that the right of an accused person to speak to others about their evidence during any adjournments was such a presupposition. No authority in support of that submission was advanced. It cannot be accepted.
8. The ability of a witness to discuss their evidence with others during an overnight adjournment, absent any evidence of prejudice, is not so fundamentally important that the loss of it could render a trial unfair.
9. Whilst leave to appeal should be granted, given that an error of law has been established, the ground cannot succeed. The error was not a material error and, in any event, there was no substantial miscarriage of justice.

1. The appeal against conviction should be dismissed. We would make the following orders:
   1. Leave to appeal on grounds 1 and 2 is granted.
   2. The appeal is dismissed.

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

[31] S v The Queen [1989] HCA 66; (1989) 168 CLR 266.

[32] Jones v The Queen [1980] WASC 37; [1980] WAR 203.

[40] Criminal Procedure Act 2004 (WA), sch 1 cl 2(4).

[41] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 92, 104 ‑ 105, 112 (Kirby J).

[42] S v The Queen (284) (Gaudron & McHugh JJ).

[44] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489.

[45] S v The Queen (287) (Gaudron & McHugh JJ).

[46] R v S [1998] QCA 271; [2000] 1 Qd R 445 [21].

[50] WAB 34, citing DKA v The State of Western Australia [2019] WASCA 123 [59].

[53] Obian v The King [2023] VSCA 18; (2023) 69 VR 553 [87] (Priest JA).

[54] International Relief and Development Inc v Ladu [2013] FCA 1216.

[55] Potier v The Queen [2015] NSWCCA 130.

[56] For example, Abbott (a pseudonym) v The Queen [2017] NSWCCA 149 [20] ‑ [25] (Basten JA).

[58] See R v Tahiata [2024] QCA 59; Adamson (a pseudonym) v The King [2024] SASCA 91.

[59] Criminal Appeals Act 2004 (WA) s 30(4).

[60] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438, 457 (Gummow & Hayne JJ).

[61] Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373; AK (455).