ZNO -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 178 (4 December 2025)

1. Adam is the appellant's biological nephew.
2. The first seven counts on the indictment related to Adam. The appellant was alleged to have offended against Adam by variously touching Adam's penis, performing fellatio on Adam, pressing his face between Adam's buttocks, tying Adam up and detaining him in a cupboard, and forcing Adam to urinate into the appellant's mouth.[2] These offences were alleged to have taken place when Adam was between 7 and 11 years old.
3. Adam gave evidence that there were many other occasions when the appellant offended against him.[3]

1. Brett is the son of a couple who were family friends of both the appellant and of Adam's parents.[4] For a time, the appellant had a quasi‑parental relationship with Brett and helped to look after him.[5]
2. Adam gave evidence that he and Brett knew each other as children and saw each other at family events, but were not close. They did not see each other much as they got older.[6]
3. The remaining 19 counts on the indictment related to Brett. The appellant was alleged to have offended against Brett by variously masturbating in Brett's presence, touching Brett's penis, performing fellatio on Brett, licking Brett's anus, penetrating Brett's anus with his finger, and attempting to penetrate Brett's anus with his penis. On one occasion he procured Brett to penetrate the appellant's anus with his penis.[7] These offences were alleged to have taken place when Brett was between 8 and 15 years old, except for one charge of performing fellatio on Brett (without his consent) when Brett was 18 years old.
4. Brett gave evidence that the appellant touched his genitals, performed fellatio on him, or licked his anus on many occasions that were not the subject of charges.[8]

1. The prosecution relied on evidence of other acts of sexual conduct towards the complainants that were not the subject of charges (other conduct evidence). The prosecutor relied on the other conduct evidence as 'context evidence' and 'tendency evidence' in relation to 24 of the 26 counts.[9]
2. As 'context evidence', the other conduct evidence was relied on to explain, among other things, why the complainants had reacted in the way that they said they did.
3. 'Tendency evidence' is evidence of the character or reputation of the accused person or of a tendency that the accused person has or had.[10] Tendency evidence may show that the accused was more likely to have committed the alleged offence because of the tendency.[11] In simple terms, tendency reasoning is 'he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue'.[12] In this case, the prosecution asserted that the appellant had a sexual interest in prepubescent and pubescent boys, and a tendency to act on that interest towards prepubescent and pubescent boys to whom he had a family or family‑like relationship, using his position of trust to offend against them when the opportunity presented itself.[13]

1. The defence case denied any of the alleged acts occurred.
2. The appellant did not give evidence at his trial. He participated in a recorded interview with police, which was admitted as an exhibit at trial, in which he denied the alleged offending.[14]
3. In his submissions in the application for leave to appeal, the appellant contended that the impugned direction was a misdirection because the defence relied upon evidence that was found not to be honest, accurate and reliable to establish concoction or collusion.[15] In fact, the defence did not rely on such evidence to establish collusion. It was not part of the defence case at trial that the complainants had colluded.
4. In cross‑examination of the two complainants, defence counsel put to them various alleged inconsistencies in their evidence. Although the two complainants had known each other as children, it was not put to either of the complainants that they had colluded. Neither was asked if they had discussed the alleged abuse with each other. The only question asked by defence counsel that even related to their association was when he asked Adam if he knew Brett.[16]
5. In closing, defence counsel argued that the complainants were lying about the appellant having offended against them. However, he did not suggest that the two complainants had colluded.

1. The trial judge gave lengthy directions to the jury.
2. Relevantly to the ground of appeal, the trial judge directed the jury that, before they could rely on the other conduct evidence, they would have to reject the appellant's denials of the offending and be positively satisfied of the honesty and reliability of the complainants' evidence.[17]
3. The trial judge then gave orthodox directions as to the use of the other conduct evidence as context evidence.[18]
4. The trial judge then gave directions as to the use of the other conduct evidence as tendency evidence. His Honour's directions on this topic, which included the sentence challenged by the single ground of appeal, stretched over six pages of transcript.[19]
5. The trial judge began by identifying the alleged tendency, and the State's submissions as to how the alleged tendency could be established and used by the jury. His Honour noted that the alleged tendency could only be relevant to 24 of the 26 charges. His Honour told the jury it had no application to counts 6 and 26, being the non‑sexual detention of Adam and the fellatio charge relating to when Brett was an adult.[20]
6. His Honour then gave the directions which contain the impugned sentence, italicised in the extract below.

So the State says you can use this evidence from either [Adam] or [Brett], about the other conduct, in this much broader sense when considering whether or not you are satisfied counts 1 through to 7, with the exception of count 6, or 8 through to 25, happened.

Now, before you can do that, you first of all must come to a view as to parts of either [Adam's] evidence or [Brett's] evidence that you consider to be honest, accurate and reliable. To the extent that you consider parts of either of their evidence to not be honest, accurate or reliable, then you should put that evidence to one side.

It won't assist you in carrying out this task. But in making this assessment, you should consider their evidence as a whole in the context of the other evidence that you have heard and you are prepared to accept, and you shouldn't approach it in a piecemeal fashion in the way that I sort of talked about when dealing with inferences.

Obviously, [the appellant's counsel] submits to you that you cannot be satisfied that either [Adam] or [Brett] were honest, accurate or reliable witnesses at all. And that when you consider their evidence in the context of the other evidence that you've heard, coupled with the inconsistencies that he says is demonstrated in their evidence, that when you carry out that process of examining their evidence, and deciding whether it was honest, accurate or reliable, that you would be left with a doubt, not just as to the existence of whether there was this sexual interest, but also in relation to the evidence as a whole, and so therefore, you would acquit [the appellant] of each of the 26 counts he's charged with.

However, if during this process of examining [Adam's] evidence or [Brett's] evidence, and carrying out that process of deciding what you are prepared to accept and what you are not prepared to accept, if during that process you are left with a doubt in relation to the counts relating to [Adam] being counts 1 through to 7, when you are looking at [Adam's] evidence, then you would acquit [the appellant] of that count.

Similarly, when you are carrying out the process of assessing [Brett's] evidence and you are left with a doubt regarding any of the counts that relate to counts 8 through to 26, then you would acquit him of ‑ [the appellant], that is, of that count that you hold a doubt about.

Ultimately, [the appellant's counsel] contends that you could not be satisfied that [the appellant] held any interest in boys in the way the State says because when you examine the evidence of either [Adam] or [Brett], you would come to the conclusion that their evidence was not accurate, honest, reliable, and so therefore, you could not be satisfied that such an interest existed because, quite simply, he says it doesn't.

[The appellant] is not someone who holds such an interest.

But it may be that after considering all of the evidence, you are satisfied that [Adam's] evidence and [Brett's] evidence is honest, is accurate and is reliable, but you are not satisfied that it gives rise to the sexual interest that the State submits it shows, if that is the case, then again, you would put this to one side and you would reject the State's submission and then you'd go on to consider whether you are satisfied of their evidence in relation to the individual counts that I've talked about, and you would have to decide individually, whether [the appellant] is guilty or not guilty of those counts.

However, if after having considered [Adam's] evidence and [Brett's] evidence, and you look at it in the context of the surrounding evidence that you have accepted, and you are satisfied that on the entirety of the evidence that you are prepared to accept, that it does show that [the appellant] had this sexual interest that the State says it does, that he had a sexual interest in young boys in the ways that I've talked about, and that he had a tendency to act upon that sexual interest when the opportunity presented itself.

Then that finding of fact that you have made about the existence of [the appellant's] sexual interest, and that tendency for him to act upon it when opportunity presents itself, is a fact that is open to you to use. And you can use that sexual tendency to assist you in determining whether it was then more likely that he committed each of the specific offences that aren't the subject of the charged conduct.

In order to use this tendency in this way, you must be satisfied that the sexual interest existed at the time that [the appellant] is said to have committed the particular offence that you are considering. Whether you find that [the appellant] had the tendency, and if so, the weight, if any, that you attribute to that evidence, are matters entirely for you. But I remind you and stress what I have said earlier, that it is that you must still look at each alleged offence separately and make a decision on each one separately. But if you have made this finding of fact, it may assist you in coming to that conclusion.

In short, members of the jury, this sexual tendency evidence, if established, is effectively circumstantial evidence which you can consider along with all of the other evidence relevant to a particular count, which you can then consider when looking at the direct evidence given by either [Adam] or [Brett], in deciding whether it satisfies you beyond a reasonable doubt as it relates to a specific count, deciding whether the State has proven that specific count to the requisite standard of beyond reasonable doubt.

1. His Honour further directed the jury as to how the tendency evidence could not be used, in orthodox terms.[21] His Honour concluded his discussion of tendency evidence as follows:[22]

[I]n order to establish guilt, the only evidence that directly establishes guilt is either [Adam] or [Brett's] evidence, as it relates to each of those specific counts.

To satisfy you of that, you must be satisfied of their direct evidence as it relates to that count and whether that evidence was honest, accurate and reliable. You have to be satisfied that the specific act occurred and that the elements of the offence are satisfied beyond reasonable doubt. In carrying out that task, you may use the evidence that I've just referred to, in relation to other conduct in that way, provided you are satisfied it establishes the sexual interest in the manner in which the State says it does.

1. Elsewhere in the trial judge's charge, his Honour gave orthodox, albeit lengthy, directions as to how to assess the credibility and reliability of the witnesses.[23]

1. The appellant was convicted on six of the seven charges relating to Adam and 17 of the 19 charges relating to Brett. He was sentenced to a total effective sentence of 13 years' imprisonment.

1. The appellant appeals on the single ground that the trial judge

erred in law and made a wrong decision on a question of law when he directed the jury ... to 'put to one side any evidence they considered not to be honest, accurate or reliable' when they were considering the evidence of the two complainants. (original emphasis)

1. As is plain from the extract set out above, the judge gave this direction when explaining to the jury what evidence they could take into account in deciding whether the State had proved the alleged tendency. It was not part of the trial judge's direction as to how to assess the credibility and reliability of the witnesses. As noted above, his Honour gave orthodox directions as to how to assess the credibility and reliability of the witnesses.
2. It is difficult to understand the appellant's complaint about the impugned direction.
3. The appellant expressly denied that he contended that the judge ought to have gone on to say words to the effect that 'And it might be that you need to take that rejection of that part of the evidence into account in assessing the credibility and reliability of their evidence more generally'. The appellant also conceded that the trial judge had directed the jury as to how to assess the credibility and reliability of the witnesses, and the appellant made no complaint about those directions.[24]
4. The appellant's counsel articulated the complaint as follows:[25]

The complaint is quite directly about the impermissible treading of the trial judge into an area specifically and expressly and strictly reserved for the jury. Which is to say, a trial judge, and in this case did give directions, telling the jury that they are free to accept and reject evidence from a particular witness. They can divide what they hear during the trial up into things that they accept and don't accept. To go one step further and to tell them that anything they do not accept should be put to one side is, we say, a fundamental error. It may even be a fundamental error.

1. Later, the appellant's counsel said:[26]

The ground of appeal is not that there was a missing direction. It is that this direction comes to the ears of jurors as a qualifying direction. It has the words, 'before you do this', 'first you must do this', 'must'. It is an unfortunate error, in our submission.

1. From these submissions, it appeared that the complaint was the impugned direction had intruded on matters solely within the jury's purview. It appeared to be a complaint analogous to, for example, a complaint that a judge had directed a jury that they must consider the counts or the witnesses in a particular order.
2. The complaint so understood has no merit. In the passage containing the impugned direction, the trial judge was explaining to the jury what evidence they could consider in deciding whether the State had proved the alleged tendency. Having earlier explained how to assess the credibility and reliability of the witnesses, the trial judge told the jury that they could only use evidence that they found to be honest, accurate and reliable, and that they could not use evidence that they did not find to be honest, accurate and reliable. This direction could perhaps be said to have been a statement of the obvious. However, it cannot be described as impermissibly intruding on matters solely within the jury's purview. His Honour was required to identify for the jury the evidence relied upon by the State to prove the alleged tendency.[27] Favourably to the appellant, his Honour also reminded the jury that they would first need to be satisfied that that evidence was honest, accurate and reliable before they could consider whether the alleged tendency had been proved.
3. Despite the way in which the complaint was articulated, and despite the concession that orthodox credibility directions had been given, other submissions made by the appellant suggested that the complaint was that the impugned direction could have led the jury to disregard any findings they made that the complainants were dishonest when considering if the tendency had been proved.[28]
4. If this was the complaint, it also has no merit. The trial judge gave orthodox credibility directions earlier in his Honour's charge. Further, his Honour commenced the directions on tendency evidence by telling the jury that, before they considered whether the tendency had been proved, they needed to decide what evidence they considered to be honest, accurate and reliable. Further still, in the course of giving the tendency direction, his Honour repeatedly reminded the jury that the defence case was that the jury could not be satisfied that the complainants were honest, accurate or reliable witnesses, and that when their evidence was considered in the context of the other evidence, coupled with the inconsistencies that defence counsel said were demonstrated in their evidence, they would be left with a doubt as to whether there was a tendency.[29]

1. For these reasons, we would refuse leave to appeal. As there is a single ground of appeal, and leave to appeal on that ground is to be refused, the appeal is to be taken to have been dismissed.[30] In the circumstances an extension of time to appeal lacks any utility. For completeness there should also be an order refusing the application for an extension of time to appeal.

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

[9] Excluding count 6, a non‑sexual detention of Adam, and count 26, the fellatio charge relating to when Brett was an adult.

[10] Evidence Act 1906 (WA), s 31A(1).

[11] HTN v The State of Western Australia [No 2] [2022] WASCA 51; (2022) 298 A Crim R 337 [111] ‑ [114].

[12] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [70] (Gageler J).

[15] Appellant's submissions [38]. See also [53].

[27] Director of Public Prosecutions (Vic) v Roder [2024] HCA 15; (2024) 281 CLR 18 [37].

[28] See, for example, appeal ts 6, 8 ‑ 9.

[30] Criminal Appeals Act s 27(3).