MOILER -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 63

[2026] WASCA 63 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MOILER -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 63 CORAM : THOMSON P MITCHELL JA SWEENEY JA HEARD : 9 FEBRUARY 2026 DELIVERED : 11 MAY 2026 FILE NO/S : CACR 115 of 2025 BETWEEN : PETER JOHN MOILER Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent FILE NO/S : CACR 114 of 2025 BETWEEN : THE STATE OF WESTERN AUSTRALIA Appellant AND PETER JOHN MOILER Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : MacLEAN DCJ File Number : IND 98 of 2024 -- 1 of 118 -- [2026] WASCA 63 Page 2 Catchwords: Conviction appeal - Grievous bodily harm with intent - Setting victim alight using accelerant - Circular reasoning by prosecutor - Bootstraps argument by prosecutor - Error by trial judge - Whether miscarriage of justice - Whether cured by Liberato direction Sentence appeal - Grievous bodily harm with intent - Setting victim alight using accelerant - Domestic violence - Meaning of 'worst category' - Whether 'worst category' - Whether sentence manifestly inadequate Legislation: Criminal Code (WA), s 294 Result: CACR 115 of 2025 Extension of time granted Leave to appeal granted Appeal dismissed CACR 114 of 2025 Appeal allowed Respondent resentenced to 15 years' imprisonment Category: B Representation: CACR 115 of 2025 Counsel: Appellant : G Yin Respondent : R Owen SC & K C Cook Solicitors: Appellant : DG Price & Co Respondent : Director of Public Prosecutions (WA) -- 2 of 118 -- [2026] WASCA 63 Page 3 CACR 114 of 2025 Counsel: Appellant : R Owen SC & K C Cook Respondent : G Yin Solicitors: Appellant : Director of Public Prosecutions (WA) Respondent : DG Price & Co Case(s) referred to in decision(s): Allami v The State of Western Australia [2013] WASCA 230 Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 Bropho v Hall [2015] WASC 50 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Chen v The Queen [2015] NSWCCA 122 CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 Corbett v The State of Western Australia [2016] WASCA 97 Coulter v The State of Western Australia [2019] WASCA 215 Davis v The State of Western Australia [2007] WASCA 267 Dimitrovska v The State of Western Australia [2015] WASCA 162 Dodd v The State of Western Australia [2014] WASCA 13 Dunbar v The State of Western Australia [2020] WASCA 90 Duncan v The State of Western Australia [2018] WASCA 154 Edmonds v Edmonds [1935] VLR 177 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 Eriha v The State of Western Australia [2011] WASCA 167 Evans v The State of Western Australia [2020] WASCA 26; (2020) 55 WAR 310 Gionfriddo & Faure [1989] VSC 498; (1990) 50 A Crim R 327 Kabambi v The State of Western Australia [2019] WASCA 44 Kalbasi v The State of Western Australia [2016] WASCA 144 Law v The Queen [2020] WASCA 196 Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 Mahmood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 MDP v The King [2025] HCA 24; (2025) 99 ALJR 969 -- 3 of 118 -- [2026] WASCA 63 Page 4 Oxenham v The State of Western Australia [2015] WASCA 30 R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 R v Ciantar [2006] VSCA 202; (2006) 16 VR 26 R v Howard [2005] VSCA 235 R v Kilic [2016] HCA 48; (2016) 259 CLR 256 R v Oth [2022] QCA 53 R v WBS [2022] QCA 26 R v White [1998] SCR 72 RGT v The State of Western Australia [2017] WASCA 120 Schaper v The State of Western Australia [2010] WASCA 178 The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 The State of Western Australia v Chungarai [2021] WASCA 147 The State of Western Australia v Darroch [2018] WASCA 114 Trompler v The State of Western Australia [2008] WASCA 265 Yarran v The State of Western Australia [2026] WASCA 34 Zhang v The State of Western Australia [2013] WASCA 121 Zheng v The Queen (1995) 83 A Crim R 572 Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 -- 4 of 118 -- [2026] WASCA 63 Page 5 Table of Contents Thomson P Introduction ................................................................................................................................ 7 Circumstances of alleged offending ........................................................................................... 7 Prosecution case ....................................................................................................................... 10 Prosecution opening ............................................................................................................. 10 Prosecution closing ............................................................................................................... 11 Judge's charge ....................................................................................................................... 13 Ground of appeal ...................................................................................................................... 15 The State's concession .............................................................................................................. 15 Accelerant on the car bonnet .................................................................................................... 16 Alleged lies to Mr Tsang, Mr Shepherd and Ms Peppler ......................................................... 18 The prosecutor's 'consistency' submission ................................................................................ 21 Conclusion on the appeal ground ............................................................................................. 23 Conclusion on conviction appeal .............................................................................................. 24 Sentence appeal ........................................................................................................................ 24 Mitchell & Sweeney JJA Overview .................................................................................................................................. 24 The circumstances of the offending alleged at trial .................................................................. 27 Mr Moiler's account to police ................................................................................................... 31 Issues at trial ............................................................................................................................. 33 Ground of appeal ...................................................................................................................... 34 The State's concession .............................................................................................................. 34 The 'post-offence conduct, denials and lies' ......................................................................... 35 Evidence relating to the alleged pouring of fuel on the bonnet of the car ........................ 36 Evidence of Mr Moiler speaking to his neighbours shortly after the incident ................. 39 Inconsistencies between Mr Moiler's interview and the recorded conversation with his mother ............................................................................................................................... 42 The prosecutor's opening address ......................................................................................... 43 Defence counsel's opening address ...................................................................................... 44 The prosecutor's closing address .......................................................................................... 45 Defence counsel's closing address ........................................................................................ 50 The learned trial judge's charge ............................................................................................ 51 Should the State's concession be accepted?.......................................................................... 56 Particular 2 - impermissible use of post-offence conduct, denials and lies as evidence of consciousness of guilt ............................................................................................................... 65 Proof of lies as evidence of guilt and 'bootstraps' reasoning ................................................ 65 -- 5 of 118 -- [2026] WASCA 63 Page 6 Could the conversations with the neighbours be relied upon as lies amounting to evidence of guilt? ................................................................................................................................. 69 Particular 1 - did the prosecutor close his case on a different basis than opened, in relying on lies as evidence of guilt? ........................................................................................................... 75 Particular 3 - did the learned trial judge's directions address the prejudice occasioned by the change in the State's case? ........................................................................................................ 82 State's appeal against sentence ................................................................................................. 87 Legal principles as to 'worst category' cases ........................................................................ 88 Legal principles where sentence is said to be manifestly inadequate................................... 90 Findings made by the learned trial judge for sentencing purposes....................................... 90 Mitigatory matters, personal circumstances and sentencing comments ............................... 96 Ground 1 - disposition .......................................................................................................... 98 Ground 2 - disposition ........................................................................................................ 116 Residual discretion ............................................................................................................. 116 Resentencing ....................................................................................................................... 117 Orders ..................................................................................................................................... 117 CACR 115 of 2025: Mr Moiler's conviction appeal ......................................................... 117 CACR 114 of 2025: The State's appeal against sentence ................................................... 117 -- 6 of 118 -- [2026] WASCA 63 THOMSON P Page 7 THOMSON P: Introduction 1 On 10 September 2025, Peter John Moiler was convicted of an offence against s 294 of the Criminal Code (WA). The charge was that, on 2 June 2023, with intent to maim, disfigure, disable or do grievous bodily harm, he had unlawfully done grievous bodily harm to Kirsten Eloise Moiler, who was his estranged wife. He was sentenced on 12 September 2025 to a term of 11 years' imprisonment. 2 For convenience, I will refer to Peter John Moiler as the 'appellant'. However, there are two appeals before the court. The first is the appellant's appeal against conviction. The second is the State's appeal against the sentence imposed upon the appellant. 3 The State has conceded that the appeal against conviction by the appellant should succeed. Notwithstanding this, the court must be satisfied that the concession has been appropriately made. I will therefore consider this issue first. Circumstances of alleged offending 4 The appellant was the long-term partner, and then husband, of Ms Kirsten Moiler. They had a tumultuous relationship, marked by sharing and using drugs, particularly methylamphetamine. In late May 2023, they separated. The appellant continued to reside in the former matrimonial home in Mount Helena. 5 On 2 June 2023, at around dusk, Ms Kirsten Moiler drove to the former matrimonial home. It appears that the appellant was expecting her to come around to the house. Ms Moiler parked her car at the bottom of the driveway and the appellant approached the car. The prosecution alleged that the driver's window was open. What then occurred is in issue. 6 The prosecution case was as follows. The appellant approached the car and threw a star picket used for fencing through the window, like it was a javelin. However, it missed hitting Ms Moiler and landed in the passenger's seat of the vehicle. The appellant then doused Ms Moiler with fire accelerant over her chest area from some form of bottle, ignited the accelerant, and set her on fire. Ms Moiler managed to unbuckle the seat belt and get out of the car. She contrived to get undressed. Ms Moiler said that the appellant then crouched near to -- 7 of 118 -- [2026] WASCA 63 THOMSON P Page 8 her and said, '[w]hat's wrong, bub; what's wrong bub?'1 She then ran down to a nearby creek. 7 After she went into the creek, Ms Moiler then ran back up to a nearby property, where she was assisted by a neighbour, Ms Moffatt. She said she looked over to her car, and saw the silhouette of a man, who she thought was the appellant, carrying something like an oil drum and splashing liquid onto the middle of bonnet of her car up towards the windscreen. The appellant's car was set on fire. 8 Ms Moiler suffered full-thickness burns as a result of the incident and had to be placed into an induced coma for three weeks. 9 The evidence of Ms Moiler about seeing the appellant splashing liquid onto the bonnet of her car is one aspect of what the appellant has characterised as 'post-offence evidence', which formed part of the prosecution case. 10 There were two other types of post-offence evidence which formed part of the prosecution case. 11 One type of evidence concerned what the appellant said to his neighbours Christopher Tsang and Laurence Shepherd, and then separately to Janet Peppler, immediately after the incident. 12 Christopher Tsang was inside his house just down the road from the appellant's house. He said that his partner heard a big bang and he went outside to investigate. He saw flames and ran down to Ms Moiler's car, while his partner called emergency services.2 At some stage while he was outside, he met another neighbour, Laurence Shepherd, who was also investigating what had occurred. Mr Tsang said that while he was down the road he saw a car (a Holden Astra) coming down the street, which squeezed past the burning car. He stopped the car coming down the street, which the appellant was driving. The appellant's facial hair appeared to be singed, and he had burns on one of his arms.3 13 The appellant told Mr Tsang that there was no one in the burning car. The appellant also told Mr Tsang that his 'ex' had been removed from the lease for the house, and had tried to kill him by squirting fuel on him and setting him alight.4 Mr Tsang spoke to the appellant about 1 ts 129. 2 ts 273 - 274. 3 ts 275. 4 ts 277. -- 8 of 118 -- [2026] WASCA 63 THOMSON P Page 9 leaving the scene and got the appellant to pull into his driveway, but the appellant then backed out. He gave Mr Tsang his full name, but said he was going to his mother's house. The appellant told Mr Tsang that his 'ex' was half-Aboriginal and that her family was likely on their way, so he was 'out of there'.5 14 Mr Shepherd also gave evidence that he observed the appellant driving down the street, and stopping to speak to him and Mr Tsang. Mr Shepherd said that the appellant's beard was singed on one side, and one of his arms looked very red and singed.6 He said that the appellant had told them that his wife or ex-wife had called him, and said that 'she was coming with petrol and guns to get him'.7 Although not sure of the exact words which the appellant used, Mr Shepherd said that the appellant also told them that Ms Moiler had 'tried to firebomb him with petrol but he had managed to fend off most of [it] and it landed on her'.8 He also told Mr Shepherd and Mr Tsang that 'the lease for the house was finished and that his kids live with his mum and that's - that was where he was going'.9 Mr Shepherd recalled that the appellant was visibly shaking. 15 Ms Janet Peppler was an elderly lady who lived nearby to the appellant's house, with her husband. She gave evidence that she heard a boom between 6.00 pm and 7.00 pm, and went outside but could not see anything. She then heard a car coming down her driveway very fast and went outside again.10 The appellant got out of the car and held out his left arm, which appeared blistered, and said, 'Kirsten set the - the car on fire, but you're all right'; or, 'you're all right' followed by, 'Kirsty set the car on fire'.11 Ms Peppler asked where the children were, and the appellant said that they were at his mother's house. The appellant did not say anything about Ms Moiler, or her condition.12 16 The other category of post-offence evidence which formed part of the prosecution case related to four inconsistencies between what the appellant said to police during various interviews, and what he said in a covertly recorded conversation he had with his mother after the incident. In the covert recording: 5 ts 278. 6 ts 352. 7 ts 353. 8 ts 353. 9 ts 353. 10 ts 290 - 291. 11 ts 291, 293. 12 ts 291. -- 9 of 118 -- [2026] WASCA 63 THOMSON P Page 10 (a) the appellant said that he was aware that Ms Moiler had made an application for a violence restraining order against him, whereas in his police interviews he said that he only believed that she was going to do so; (b) the appellant said that he had been consuming significant amounts of methylamphetamine, whereas during his police interviews the appellant minimised his drug use and maintained that Ms Moiler was abusing methylamphetamine; (c) the appellant accepted that he had carried the star picket when he went to the car, because he expected that Ms Moiler might confront him, but he told the police that he did not know who was in the car, and that he had not been armed when he went to the car just prior to the incident; and (d) the appellant said that Ms Moiler had squirted him with accelerant from a 'Pump' branded water bottle, whereas he told the police that he did not know what sort of container the fuel had come from, perhaps a cup or a bottle. 17 At the oral hearing of the appeal, the appellant no longer maintained any complaint about the directions given by the trial judge in relation to the discrepancies between what he said in his police interview and to his mother.13 18 The appellant did not himself give evidence at trial. Prosecution case Prosecution opening 19 In his opening address, the prosecutor referred to the evidence of the appellant pouring fuel onto the bonnet of the car, and said:14 [T]his is not the conduct you would expect an innocent victim to do, destroying a car, but what you would expect the perpetrator of the incident to do, get rid of any evidence. 20 In relation to the evidence of what was said by the appellant to the neighbours, the prosecution opened by saying:15 What Peter Moiler yelled out for the benefit of anyone listening, what he told his neighbours and what he told police was in effect, that 13 Appeal ts 4 - 5. 14 ts 46 - 47. 15 ts 30. -- 10 of 118 -- [2026] WASCA 63 THOMSON P Page 11 Kirsten Moiler did this to herself. The burden will be on the prosecution to satisfy you beyond a reasonable doubt that this is not true, that Kirsten Moiler did not do this to herself, but rather that it was her husband, Peter, who sprayed her with fuel and who set her alight. Prosecution closing 21 In his closing address, the prosecutor developed a case theory that suggested that the appellant had lied to his neighbours about what had occurred, in order to construct an alternative version of events that the appellant had been attacked by Ms Moiler. The prosecutor said:16 Even before speaking to police, Peter Moiler was getting out his version of events. You might think he was very quick off the mark with his version of events, while his wife was still lit up. 'What the fuck just happened? What did you have all that fuel for?' Then he went back up to the house, got in the Astra, and drove back down the driveway, past the burning car, where he stopped to speak to his neighbours. Each of them, Mr Tsang and Mr Shepherd, they told you that Mr Moiler told them what had happened. He told them he was on his way to Sawyers Valley where his kids were, but he didn't go there straight - he didn't go straight there at all. Instead he drove around the block to speak to Janet Peppler as well. Peter Moiler was telling anyone who cared to listen. He was going out of his way to tell people that he was the victim. The submission the State makes to you is that Peter Moiler was getting his lie known all over Mount Helena, while the person who has ultimately given you the truth was in an induced coma where she would stay for several weeks. 22 The prosecutor then referred to the evidence of someone pouring accelerant onto the bonnet of the car, before returning to what the appellant had said to the neighbours:17 When you look at Mr Moiler's conduct after his wife is set alight, we put to you that it matches what you would expect of a man who had done to her what she told you he did. Firstly, there's the evidence of him pouring something over the car. … If Mr Moiler was the innocent victim of this incident, if this was something she did to him, well, what purpose could be served by burning the car? He would be destroying the evidence of what somebody had done to him. But if Peter Moiler was the perpetrator of 16 ts 476. 17 ts 484 - 486. -- 11 of 118 -- [2026] WASCA 63 THOMSON P Page 12 this incident, then the purpose in burning the car is obvious. He would be destroying the evidence of what he himself had done. What Peter said to Christopher Tsang also fits uneasily with the version of events he was trying to put out there. He said something about his wife's ethnicity, and he said her family is more than likely on their way, so he was out of there. What reason would he have to be afraid of Kirsten's family if he were the innocent victim of an attack by her? Then there's his visiting Janet Peppler. I mean, she is his neighbour … Why [go] there at all if his priority is getting out of there and getting to his kids? I mean, it might have been natural to give an explanation to Christopher Tsang on his way out, but driving all the way around the block in order to visit Janet Peppler, you might think that shows the concern that she might have heard something or seen something, and he needed to get his version to her quick. He didn't even tell Ms Peppler that Kirsten had been burnt. And in that context, it's in that context that she suggested he should get to his children. If he was the innocent victim, if this sudden unprovoked attack on him had just made him want to be with his children, why take this lengthy detour to go and speak to his neighbour? The prosecution puts to you, not only did all the conditions exist in Peter's life before this incident, to make an attack on his wife of the kind she describes feasible, plausible, but his behaviour after the incident is more consistent with the conduct of a perpetrator than of the victim he was trying to tell everyone he was. (emphasis added) 23 The prosecutor continued in a similar vein towards the end of his closing address, in describing the appellant's actions:18 But he was quick thinking to respond defensively - to call out things that you might expect an innocent victim to say. 'What happened?' While his wife is on fire and calling out, 'Help me', Peter Moiler says, 'What are you doing?' I mean, what she's doing is trying to get out of the car. And then he has the presence of mind to say, 'What the fuck just happened?' And 'What did you have all that fuel for?' While she's calling out, 'I need water', he's saying, as an innocent man might, 'Somebody call the police.' It's more important, you might think, for him to present himself as the kind of man who wants police to come than to actually do anything himself - to call police or ambulance or the fire brigade. He leaves that for other people to do. It's a full 20 minutes before he gets on the phone himself. And as for helping his wife, as for alleviating her pain and suffering, he leaves that to other people to do as well. What he was 18 ts 492 - 493. -- 12 of 118 -- [2026] WASCA 63 THOMSON P Page 13 about, you might think, was already selling the story. 'I didn't do this, she did.' When Peter Moiler told police he didn't want Kirsten charged, he said it was because she'd had her comeuppance. She'd had her comeuppance. This isn't magnanimity on his part. You might think it's consistent with somebody who wouldn't want the police to investigate the incident too much, in case they got to the truth. (emphasis added) 24 At the end of his closing submissions, the prosecutor said:19 What the prosecution has to prove to you is that Peter Moiler did this. If he did this, then it's obvious that he intended to do so - that he intended at least one of the kinds of harm mentioned in the charge. Anyone who sets someone else alight must intend, even if momentarily, to maim, disable, disfigure or do some grievous bodily harm to that person, because setting someone alight does that kind of thing to you, as anybody would know. Kirsten Moiler has, in her sworn evidence, told you that her husband did this to you - to her. The prosecution's submission to you is that you should accept her evidence. It is the truth. Not just because Kirsten is a credible and believable witness, but because the other evidence in this trial - the CCTV footage, the expert medical evidence, what was going on in Peter's life before this happened, how he behaved after this happened - is consistent with - it fits with what she has told you. What the prosecution submits is that the evidence, considered as a whole, all points in one direction towards a verdict of guilty. (emphasis added) 25 The emphasised passages in the last three quotes need to be carefully considered in context. An issue on this appeal is whether they amount to a submission to the jury that the appellant's conversations with the neighbours after the incident should be understood simply as denials of having set fire to Ms Moiler, or whether the prosecutor went further and suggested that these passages could be relied upon as amounting to lies suggesting a consciousness of guilt that Mr Moiler had set fire to Ms Moiler. Judge's charge 26 In a lengthy passage, which requires reproduction in full, the trial judge made the following comments to the jury about the prosecution's case theory:20 The issue is that the State must prove beyond a reasonable doubt that Peter John Moiler was the person who splashed a flammable substance on Kirsten, and that Peter John Moiler was the person who ignited that 19 ts 494. 20 ts 520 - 522. -- 13 of 118 -- [2026] WASCA 63 THOMSON P Page 14 flammable substance. And those issues are things that the State must prove and prove beyond a reasonable doubt. And the State relies on [Kirsten's] evidence as to how the fire started. You cannot convict Mr Moiler unless you [are] satisfied beyond reasonable doubt as to Kirsten Moiler's truthfulness, accuracy and reliability as to how the fire started. Kirsten is the only witness who gives direct evidence as to the splash of the accelerant, the flicker or the ignition of it, and that it was Peter who did both. … The State's case, as you're aware, involves direct evidence, and that direct evidence comes from Kirsten Moiler, as to being seated in the car, the conversation that ascribes to Peter Moiler, his conduct in applying or splashing the accelerant, and his conduct in igniting the accelerant. The State also relies on circumstantial evidence. Namely, it says that Mr Moiler was angry and agitated on the day and, in support of that contention, relies on the instant messages and SMS messages that were tendered in the course of the trial. The State says that the circumstances in which Ms Kirsten Moiler's [belongings] were bundled into the car also demonstrate his anger. They refer to or rely on what was said to be his practice in lighting fires using an accelerant. It relies on the CCTV footage of earlier that day, which appears - it's a matter for you - to record Mr Moiler purchasing petrol or something and placing that purchase into a jerry can. The State also relies upon the location of the injuries that Kirsten sustained and relies on a comparison of the difference in injuries as sustained by each of Peter and Kirsten. The State also relies on what it says was Mr Moiler's conduct after the explosion and points to the record in which - it's a matter for you; this is a comment on fact - there appears to be a voice which is calling for police and not for first aid or for an ambulance. The State also says that the conduct after the ignition included pouring fuel on the bonnet of the car to destroy it and says that that was conduct that, if you found to be established, was not conduct that was consistent with someone [who] was not involved, instrumentally, in igniting the fire. The State also points to what it says was conduct on Mr Moiler's part, of talking to and visiting neighbours in the immediate aftermath of the fire to get his version of the story out there. And the State's submission, essentially, is that he was very soon after the event trying to craft the narrative to ascribe responsibility for the ignition of the fire to Kirsten and to distance himself from that, and the State say that they are circumstances which support its case that, together with the direct evidence, you should conclude that Mr Moiler is guilty of the offence as charged. (emphasis added) -- 14 of 118 -- [2026] WASCA 63 THOMSON P Page 15 27 This passage starts by identifying the key factual issue which the prosecution must prove. It correctly acknowledges that the prosecution relies upon the direct evidence of Ms Moiler as to how the fire started. The trial judge then lists a number of additional circumstances upon which he says the prosecution relies, to establish this fact. This includes seeing a person pour accelerant onto the bonnet of Ms Moiler's car, and the interactions of the appellant with the neighbours immediately after the incident. Ground of appeal 28 There is one ground of appeal, which is as follows: There was a miscarriage of justice because the prosecutor invited the jury in his closing address to impermissibly reason that the appellant's post-offence conduct, denials and lies was positive evidence of his guilt. Particulars 1. The prosecutor in his closing address relied on the appellant's post-offence conduct, denials and lies as evidence of consciousness of guilt, when he opened his case on the basis that this evidence was circumstantially relevant or relevant to credit only. 2. The prosecutor impermissibly invited the jury to use the appellant's post-offence conduct, denials and lies as evidence of a consciousness of guilt of the offence as charged when this evidence was not admissible for this purpose. 3. The trial Judge's directions did not address the change in the prejudice occasioned from the change in the State case. 29 The substance of this ground is that there was a shift in the prosecution case between opening and closing, and that this change caused prejudice to the appellant which was not remedied by the trial judge. This ground does not allege that the trial judge himself misdirected the jury as to the use which could be made of the appellant's post-offence conduct, denials and lies. The State's concession 30 The State says that it is at least arguable that it would have been open to rely upon the appellant's alleged post-offence conduct in pouring accelerant onto the bonnet of Ms Moiler's car, as evincing a consciousness of guilt. However, the State accepts that this use of the evidence was not expressly and precisely identified, and the trial judge -- 15 of 118 -- [2026] WASCA 63 THOMSON P Page 16 did not give any directions about whether and how the conduct could be used to establish the appellant's guilt. 31 The State submits as follows:21 The respondent respectfully concedes that the effect of the prosecutor's closing submissions as to the post-offence conduct issue was to invite the jury to reason that if the appellant did attempt to set fire to the car bonnet, he did so because he was guilty of the charged offence. It is beside the point that the alleged post-offence conduct might well have been admissible as evidence of consciousness of guilt. In circumstances where the State had not expressly and precisely identified reliance upon the alleged conduct as demonstrating consciousness of guilt but made submissions to that effect for the first time in closing submissions, it cannot properly be said that this was not a departure from the fundamental obligations of a prosecutor to act with fairness. 32 The State also submits that the miscarriage of justice occasioned by the prosecutor's reliance in closing submissions on post-offence conduct was compounded by the absence of appropriate jury directions on the issue.22 33 On the other hand, the State contends that the prosecutor did not invite the jury to engage in any consciousness of guilt reasoning in relation to the alleged lies to the appellant's neighbours or to the police during his interviews. The State says that the credibility of the appellant was squarely placed into issue, because the case advanced by the appellant at trial was not merely that he did not set his wife alight, but that she was responsible for her own injuries, because she accidentally set herself on fire while trying to injure the appellant. Consequently, the State says that all that was required was a standard direction about lies in accordance with Zoneff v The Queen.23 The trial judge gave such a direction.24 Accelerant on the car bonnet 34 The post-offence conduct involving the appellant allegedly pouring accelerant onto the bonnet of Ms Moiler's car could only be used as evidence of the appellant's guilt if the appellant's purpose was to destroy evidence of his offences against Ms Moiler. 21 Conviction appeal WAB 31 (respondent's submissions [21]). 22 Conviction appeal WAB 31 (respondent's submissions [23]). 23 Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 [23]. 24 ts 529. -- 16 of 118 -- [2026] WASCA 63 THOMSON P Page 17 35 The prosecution relied upon the conduct to inculpate the appellant, both in opening and closing submissions. In opening, the prosecutor said:25 The prosecution case is that Peter Moiler poured fuel onto the bonnet of the car after this incident and that this is not the conduct you would expect an innocent victim to do, destroying a car, but what you would expect the perpetrator of the incident to do, get rid of any evidence. (emphasis added) 36 In closing submissions, the prosecutor said:26 If Mr Moiler was the innocent victim of this incident, if this was something she did to him, well, what purpose could be served by burning the car? He would be destroying the evidence of what somebody had done to him. But if Peter Moiler was the perpetrator of this incident, then the purpose in burning the car is obvious. He would be destroying the evidence of what he himself had done. 37 In his charge to the jury, the trial judge said:27 The State also says that the conduct after the ignition included pouring fuel on the bonnet of the car to destroy it and says that that was conduct that, if you found to be established, was not conduct that was consistent with someone [who] was not involved, instrumentally, in igniting the fire. (emphasis added) 38 In these circumstances, the question arises as to whether the jury should have been directed that before they relied upon the evidence of the appellant pouring accelerant onto the bonnet of the car, they needed to be satisfied that the appellant's purpose in pouring out the accelerant was to destroy evidence, rather than some other purpose such as acting out of general panic? 39 The State accepts that a direction along the lines proposed should have been given, based upon the reasoning in Edwards v The Queen.28 40 The obligation to give an Edwards direction arises from the duty of a trial judge to ensure that the accused has a fair trial. The direction is designed to avoid a perceptible risk of a miscarriage of justice, 25 ts 46 - 47. 26 ts 485. 27 ts 521 - 522. 28 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 210 - 211. -- 17 of 118 -- [2026] WASCA 63 THOMSON P Page 18 because the jury has employed an impermissible reasoning process. See Evans v The State of Western Australia.29 41 In the present case, I do not consider that such a direction was required to avoid the jury employing an impermissible reasoning process. The only rational purpose which could exist for the appellant pouring accelerant onto the bonnet of Ms Moiler's car was to destroy evidence of his offence. Consequently, so long as the jury understood that it had to be satisfied beyond reasonable doubt that the appellant poured accelerant onto the car bonnet, it was evidence which could be used to establish the appellant's guilt. There would be no unfairness in failing to give a direction along the lines in Edwards, as there was no other possible reason for engaging in the conduct apart from a consciousness of guilt. 42 Having carefully considered the matter, there does not appear to be any other reasonable possibility for explaining why the appellant would have poured accelerant onto the bonnet of the car. Certainly, the appellant's counsel did not suggest any. Instead, the appellant's counsel said that the jury should not conclude that Ms Moiler saw the appellant, as Ms Moiler said that the man she saw was wearing a flannelette shirt, whereas no such shirt was located on the appellant or in his car.30 43 In these circumstances, I do not consider that there was any miscarriage of justice by reason that an Edwards direction was not given in respect of the post-offence conduct represented by the allegation that the appellant poured accelerant onto the bonnet of Ms Moiler's car. I do not accept the concession made by the State that the appeal should be allowed on this basis. Alleged lies to Mr Tsang, Mr Shepherd and Ms Peppler 44 The second critical question is whether it was necessary to provide an Edwards direction in respect of the lies which the appellant was alleged to have told the neighbours and the police. That is, should the jury have been directed that before they could rely upon evidence of the appellant telling lies to the neighbours (Mr Tsang, Mr Shepherd and Ms Peppler) in order to support a conclusion that the appellant was guilty, it was necessary for them to be satisfied that each of these lies was told out of a consciousness of guilt? 29 Evans v The State of Western Australia [2020] WASCA 26; (2020) 55 WAR 310 [98]. 30 ts 513. -- 18 of 118 -- [2026] WASCA 63 THOMSON P Page 19 45 In the first place, it is necessary to consider whether the prosecution or the trial judge ever suggested to the jury that the appellant's alleged lies about Ms Moiler attacking him could be used as evidence of the appellant's consciousness of guilt. If the prosecution case, and the trial judge's directions, were confined to a submission that the jury should conclude that the appellant had lied on the three occasions, this is not using the post-offence lies as consciousness of guilt, and as part of the reasoning process to a conviction. It is simply asking the jury to reject the appellant's version of events as he explained it to Mr Tsang, Mr Shepherd, Ms Peppler and the police. 46 Both the conclusion that the appellant had committed the offence, and that he had lied to Mr Tsang, Mr Shepherd and Ms Peppler, might be reached by the jury concurrently as part of consideration of the whole of the evidence. However, no part of the reasoning process should involve an analysis that because the appellant lied to Mr Tsang, Mr Shepherd, Ms Peppler or the police, this was probative of his guilt of the offence.31 47 The appellant's claim that he was the victim of an offence himself, made to Mr Tsang and Mr Shepherd, arose immediately after the incident occurred, and in circumstances where events caused the appellant to have to speak to Mr Tsang and Mr Shepherd as he was leaving the scene of the incident. Apart from what I say about the 'consistency' submission below, the State did not specifically suggest that what the appellant said to Mr Tsang or Mr Shepperd amounted to more than denials by the appellant of having committed any offence. The prosecutor suggested that they were the appellant's attempt to tell people in the Mount Helena area that he was not guilty of anything.32 The prosecutor also suggested that the lies were not credible, because the appellant had no reason to be afraid of Ms Moiler's family arriving if he were the innocent victim of her attack.33 48 To this extent, then, there was no need for any Edwards direction about the use of lies, as there was no specific suggestion that the telling of lies proved the guilt of the appellant. 49 The lies told to Janet Peppler potentially fall into a different category. The prosecution suggested that the appellant made a 31 Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515. 32 ts 476. 33 ts 485. -- 19 of 118 -- [2026] WASCA 63 THOMSON P Page 20 specific detour to see Janet Peppler and tell her that he had been the subject of an offence by Ms Moiler. The prosecutor said:34 Then there's his visiting Janet Peppler. I mean, she is his neighbour … Why [go] there at all if his priority is getting out of there and getting to his kids? I mean it might have been natural to give an explanation to Christopher Tsang on his way out, but driving all the way around the block in order to visit Janet Peppler, you might think that shows the concern that she might have heard something or seen something, and he needed to get his version to her quick. He didn't even tell Ms Peppler that Kirsten had been burnt. And in that context, it's in that context that she suggested he should get to his children. If he was the innocent victim, if this sudden unprovoked attack on him had just made him want to be with his children, why take this lengthy detour to go and speak to his neighbour? 50 The appellant has not complained particularly about the way in which the evidence of Janet Peppler was treated.35 Moreover, there is no suggestion by any person involved in the trial that the evidence relating to Janet Peppler constituted an implied admission by the appellant that he had committed the offence. Leaving aside the 'consistency' submission (addressed below), there was no suggestion that what the appellant said to Janet Peppler arose from a consciousness of guilt. The evidence concerning Janet Peppler was not specifically mentioned in the trial judge's charge to the jury. 51 In my view, the comments of the prosecutor about the lengthy detour should be understood as an attack on the truth of what the appellant said to Janet Peppler. It is difficult to see how the fact of the detour could be seen as an implied admission of any type. Apart from the 'consistency' submission (which is addressed below), there was no specific suggestion to the jury, at any stage, that the trip to Janet Peppler's house indicated the appellant's guilt. No particular complaint has been made by the appellant about what was said regarding Janet Peppler. 52 In these circumstances, I consider that a Zoneff direction was sufficient to inform the jury about how to consider the lies allegedly told by the appellant to Mr Tsang, Mr Shepherd, Ms Peppler and the police, where there had been no suggestion of any consciousness of 34 ts 485. 35 There is a passing reference to the prosecution mentioning Janet Peppler in his opening: WAB 12 (appellant's submissions [25]), but that is all. -- 20 of 118 -- [2026] WASCA 63 THOMSON P Page 21 guilt. Subject to what I say below about the 'consistency' submission, I do not consider that this aspect of the appeal ground should succeed. The prosecutor's 'consistency' submission 53 The prosecutor also made a general submission in his closing address about the 'consistency' of the appellant's post-offence conduct, including the interactions with his neighbours, with the appellant's guilt. This was effectively repeated four times. 54 First, the prosecutor said that the appellant's conduct after Ms Moiler was set alight matched 'what you would expect of a man who had done to her what she told you he did'.36 55 Secondly, the prosecutor said that when you looked at the appellant's conduct 'his behaviour after the incident is more consistent with the conduct of a perpetrator than of the victim he was trying to tell everyone he was'.37 56 Thirdly, the prosecutor said that Ms Moiler's evidence should be accepted not only because she was credible and believable, but also because the other evidence in the trial, 'the CCTV footage, the expert medical evidence, what was going on in [the appellant's] life before this happened, how he behaved after this happened', fitted with what Ms Moiler had told the jury.38 The prosecutor also said that 'the evidence considered as a whole, all points in one direction towards a verdict of guilty'.39 57 Fourthly, the prosecutor commented upon the reason why the appellant told police that he did not want Ms Moiler charged for attacking him. The appellant said that this was because Ms Moiler had already received her 'comeuppance'. The prosecutor again appealed to consistency and said, 'You might think it's consistent with somebody who wouldn't want the police to investigate the incident too much, in case they got to the truth'.40 58 The 'consistency' submission is stated at a level of generality which may make it look innocuous on its face. That is because it is not stated specifically and elaborated upon in relation to each individual piece of post-offence conduct. It wraps up all of the post-offence conduct and treats it collectively. Possibly, this is because it is intended 36 ts 484. 37 ts 486. 38 ts 494. 39 ts 494. 40 ts 493. -- 21 of 118 -- [2026] WASCA 63 THOMSON P Page 22 as a flourish by the prosecutor to say that all parts of the case support the prosecution and the evidence 'all points in one direction to a verdict of guilty'.41 59 However, it is necessary to consider the substance of the submission, in so far as it applies to the appellant's interactions with the neighbours, and to unravel its true meaning. The submission must, in effect, be a claim that the appellant's denials of the offending conduct to the neighbours are 'consistent' with the appellant's guilt, because a guilty person would be expected to deny the offending conduct. 60 In other words, the 'consistency' submission amounts to a submission that the denials can be turned into implied admissions because they are made out of a consciousness of guilt. This is most obviously evident in respect of the prosecutor's comment on the appellant's desire that Ms Moiler should not be charged. The prosecutor effectively said that this was in order to avoid too close an investigation of the circumstances of what occurred, which might show that the appellant was guilty. 61 Essentially, the passage in the trial judge's charge to the jury, extracted at [26] above, compounded this difficulty by referring to the conduct of the appellant in making denials to the neighbours as a circumstance on which the jury could rely to support the prosecution case.42 62 In my view, the 'consistency' submission, when properly appreciated, represented a material shift in the way the prosecution case was presented between the opening and closing submissions of the prosecutor. 63 It also invited impermissible reasoning, as the denials to the neighbours could not be independently proven to be lies apart from considering the direct testimony of Ms Moiler.43 This could only be corrected by a direction from the trial judge to the jury that they could not rely upon a conclusion that the appellant's denials to the neighbours were lies as a reason to support the direct evidence of Ms Moiler about what occurred. To the contrary, the trial judge did precisely the 41 ts 494. 42 ts 520 - 522. 43 Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 [68] - [70]; Yarran v The State of Western Australia [2026] WASCA 34 [58]. -- 22 of 118 -- [2026] WASCA 63 THOMSON P Page 23 opposite and instead suggested that it was a circumstance which could be relied upon to support the direct testimony of Ms Moiler.44 Conclusion on the appeal ground 64 The appeal ground relates to the appellant's 'post-offence conduct, denials and lies', and whether these could be used as positive evidence of the appellant's consciousness of guilt. Particulars 1 and 2 of the appeal ground claim that there was a change in position by the prosecution as to whether the 'post-offence conduct, denials and lies' were relevant only to credit or whether they could be used as pieces of evidence probative of the appellant's guilt. 65 It is necessary to distinguish between two categories of conduct which fell within the description of 'post-offence conduct, denials and lies'. 66 First, there is the evidence of a person seen pouring a liquid, possibly accelerant, onto the bonnet of the car, following Ms Moiler being set alight. For reasons I have explained, there was no change in position between the prosecution's opening and closing about the use which could be made of this evidence if it was proved to have taken place beyond reasonable doubt. The prosecution opened and closed upon the basis that this evidence, if proven, could be used as an implied admission of guilt. 67 I have concluded that there was no need for an Edwards-style direction about the use which could be made of this evidence, if proven, as the only process of reasoning which would flow from it was that the appellant was guilty. There was no apparent impermissible form of reasoning which could be adopted to the appellant's prejudice. For this reason, I do not accept the concession made by the State that the appeal should be allowed on the basis that no Edwards-style direction was given in respect of the episode involving a person pouring accelerant onto the bonnet of Ms Moiler's car after she was set alight. 68 The second category of evidence which falls within the description of 'post-offence conduct, denials and lies' is the interaction of the appellant with the neighbours (Mr Tsang, Mr Shepherd and Ms Peppler). As I have endeavoured to explain, there was an impermissible invitation by the prosecution in making the 'consistency' submission in its closing address to ask the jury to rely upon lies told to the neighbours as evidencing a consciousness of guilt on the part of the 44 ts 522. -- 23 of 118 -- [2026] WASCA 63 THOMSON P MITCHELL & SWEENEY JJA Page 24 appellant. This was compounded by the direction then given by the trial judge about what use could be made of this evidence. Conclusion on conviction appeal 69 For these reasons, I consider that the conviction appeal should succeed. I would grant leave to appeal and allow the appeal. I would also order a retrial. Sentence appeal 70 I have had the advantage of considering the reasons of Mitchell and Sweeney JJA. Had I dismissed the conviction appeal I would have allowed the sentence appeal and imposed a sentence of 15 years' of imprisonment (with eligibility for parole) for the reasons given by Mitchell and Sweeney JJA. I would add that I consider it particularly important to ensure appropriate penalties are imposed which mark the gravity of offences of this nature, which involve a very serious type of domestic violence. MITCHELL & SWEENEY JJA: Overview 71 On 10 September 2025, following his jury trial in the District Court, Mr Peter Moiler was convicted of unlawfully doing grievous bodily harm to his wife, Ms Kirsten Moiler, with intent to maim, disfigure, disable, or do some grievous bodily harm to her, contrary to s 294 of the Criminal Code (WA) (Code). The jury was satisfied beyond reasonable doubt that, on the evening of 2 June 2023, Mr Moiler squirted accelerant onto his wife while she sat in her car, and then set her alight, intentionally causing her grievous bodily harm. She suffered serious burns. 72 He was sentenced on 12 September 2025 to a term of 11 years' imprisonment with parole eligibility. 73 Mr Moiler has appealed against his conviction, while the State has appealed against the sentence imposed on Mr Moiler. Because Mr Moiler is the appellant in his own appeal, but the respondent in the State's appeal, he will simply be referred to in these reasons by name to avoid confusion. -- 24 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 25 74 Mr Moiler seeks leave to appeal against his conviction on a single ground concerning submissions made by the prosecutor in his closing address to the jury about alleged post-offence conduct. The relevant post-offence conduct concerns an allegation that Mr Moiler poured fuel on the bonnet of the already burning car after his wife fled, and statements Mr Moiler made to neighbours after the incident attributing responsibility for the fire to his wife. The ground of appeal also complains about the manner in which the learned trial judge directed the jury about this post-offence conduct. 75 Mr Moiler requires an extension of time within which to appeal. The delay is brief and the application unopposed. The extension of time is granted. 76 In written submissions prior to the hearing, the State conceded that the appeal against conviction should succeed on the basis of one aspect of the prosecutor's closing address relating to the allegation that Mr Moiler had poured further fuel on the car after his wife had exited the car. Notwithstanding the concession, this court must be satisfied that the concession has been appropriately made, and so sought full submissions on all matters. 77 For the reasons which appear below, we are not satisfied that the concession should be accepted. In summary, evidence of Mr Moiler pouring fuel on the bonnet of the car, if accepted, was plainly capable of constituting an implied admission of guilt on the basis that it was conduct that Mr Moiler would not have engaged in if he had not started the fire. The prosecutor anticipated this use of the evidence in his opening. There is nothing to suggest that Mr Moiler's trial counsel failed to appreciate that the prosecutor proposed that use of the evidence or might have otherwise conducted the case differently. 78 The learned trial judge did not err in failing to give an Edwards-type direction in relation to this conduct in circumstances where there was no plausible reason, other than a consciousness of guilt, why Mr Moiler might have poured accelerant onto the bonnet of the already burning car. The real forensic contest at trial was whether the evidence established that Mr Moiler engaged in the conduct. If the jury did come to be satisfied that Mr Moiler had poured fuel on the car after his wife had fled, there was no perceptible risk that the jury might misuse the evidence so as to require a further direction to be given. In the circumstances of this case, an Edwards-type direction suggesting alternative implausible explanations for the conduct would only have -- 25 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 26 emphasised the compelling incriminating nature of the conduct, if the jury accepted that it had occurred. 79 There was no unfairness to Mr Moiler and no miscarriage of justice in the way in which evidence of him pouring fuel onto the bonnet of the car was dealt with by the prosecutor or the learned trial judge. 80 The other aspect of Mr Moiler's conviction appeal ground, which the State does contest, concerns Mr Moiler's statements to neighbours shortly after the incident in which he attributed responsibility for the fire to his wife. That aspect of the ground is not established for the reasons set out below. In summary, it was open to the prosecutor to contend that Mr Moiler's statements to his neighbours were lies, as they must have been on his wife's evidence of the incident. However, it was not open to the prosecutor to rely on Mr Moiler's statements to neighbours as lies constituting implied admissions of guilt which were capable of supporting the truthfulness of Ms Moiler's account. That would involve impermissible circular or 'bootstraps' reasoning, as the jury could only be satisfied that Mr Moiler's statements were lies by accepting Ms Moiler's statements as the truth. In these circumstances, the learned trial judge was correct not to give the jury an Edwards-type direction as to when Mr Moiler's statements to the neighbours could be used as evidence of guilt. 81 Generally, the prosecutor's closing submissions about Mr Moiler's statements to neighbours reflected the structure anticipated in opening the case. This involved inviting the jury to reject and disregard Mr Moiler's denials and alternative account of the incident as contrived and false, and to accept Ms Moiler's account as the truth. At one point the prosecutor did say something which implied that he was relying upon Mr Moiler's statements to the neighbours as supporting Ms Moiler's account, and this was echoed in the learned trial judge's characterisation of the prosecution case. However, when the prosecutor's closing address and the learned trial judge's direction are considered as a whole as the jury would have understood them, there was no perceptible risk that the jury might misuse this evidence. The address and direction made it clear that, to find Mr Moiler guilty, the jury had to be satisfied beyond reasonable doubt as to the truthfulness and accuracy of Ms Moiler's account, and be left in no doubt that Mr Moiler's account might be true. Despite the brief implied invitation to circular reasoning by the prosecutor, and the inclusion by the learned trial judge of Mr Moiler's statements after the incident as part of the circumstantial evidence relied upon by the State, any possible -- 26 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 27 confusion which might have resulted was entirely cured by his Honour's other directions. Any error or irregularity constituted by the prosecutor's submission and the trial judge's inclusion of the submission in summarising the prosecution case could not have realistically affected the jury's reasoning to a verdict of guilty. Any such error or irregularity was immaterial and does not constitute a miscarriage of justice or wrong decision on a question of law in these circumstances. 82 Therefore, while leave to appeal against conviction is granted, the appeal against conviction is dismissed. 83 The State has also appealed the sentence imposed. The State contends that the learned trial judge erred in finding that the offence was not within the worst category of offences of its kind. The State also contends that, in any event, the 11-year sentence of imprisonment was manifestly inadequate. Leave to appeal against his sentence has already been given. For the reasons which appear below, we do not accept that the offending is so grave that it warrants the imposition of the maximum prescribed penalty for the offence or close to the maximum prescribed penalty. Rather, the offending falls into the upper level of seriousness and just below the worst category. As such, the trial judge did not err in failing to place the offending in the worst category. However, the sentence of 11 years' imprisonment failed to reflect the seriousness of the offending and is manifestly inadequate. The State's appeal against sentence succeeds and Mr Moiler is resentenced to 15 years' imprisonment. 84 We will turn firstly to the appeal against conviction. The circumstances of the offending alleged at trial 85 The State case was based predominantly upon Ms Moiler's account, and was as follows. 86 Mr Moiler and Ms Moiler had been in a long-term relationship, and had three children together. Their relationship was volatile and marred by mutual drug abuse. In her evidence at trial, Ms Moiler alleged a history of violent behaviour on the part of her husband towards her, which was said by his counsel at trial (defence counsel) to be exaggerated. 87 In late May 2023, the Moilers separated. Ms Moiler moved out to a chalet, while Mr Moiler and the children remained in the matrimonial home in Honey Street, Mount Helena, though the children often stayed -- 27 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 28 with Mr Moiler's mother. Ms Moiler testified that Mr Moiler was making unwelcome visits and had pressured her to be intimate the night before the incident.45 She asked the police for a weekend restraining order, but was advised to make an application at the court.46 On the afternoon of 2 June 2023, the day of the incident, Ms Moiler made an application to obtain a family violence restraining order against Mr Moiler. After filling in the necessary application and waiting at the court for the afternoon, she was informed that her matter could not be heard that day, and the next court sitting day was after the long weekend.47 She testified that she told a friend, 'Lippy', that she had been to court. There was evidence led at trial48 that, prior to the incident, Mr Moiler had become aware, through Lippy, of her application. 88 On the evening of 2 June 2023, at around dusk, Ms Moiler drove to her former house in Mount Helena. The prosecution case was that she telephoned Mr Moiler on the way there to ask whether he wanted to go to a gravel pit to do burnouts, an activity they had previously enjoyed together. Despite her pending application for a restraining order, Ms Moiler said that she did this to keep their relationship friendly, because she regarded this as a dangerous time49 and wanted to be able to co-parent and remain friends. 89 It was dusk by the time she arrived. She parked her car at the bottom of their dirt driveway (the area is semi-rural) where it met the bitumen road.50 After a few seconds, she saw Mr Moiler just behind the driver's side window of her car. Her window was down at this time.51 What happened next was very much in issue at trial. 90 The prosecution alleged that Mr Moiler said to his wife, 'Are you good?', to which she replied, 'Yeah'. He then asked, 'Are you strapped in?'52 He then threw a star picket, as if it were a javelin, through her driver's window past her shoulder, missing her, and landing in the back of the car.53 91 The prosecution alleged that Mr Moiler then squirted her torso twice with a clear liquid from a plastic water bottle with a pop top lid. 45 Trial ts 101 - 102. 46 Trial ts 109. 47 Trial ts 109. 48 By way of Mr Moiler's conversation with his mother, which was recorded. 49 Trial ts 118 - 120. 50 Trial ts 121. 51 Trial ts 122. 52 Trial ts 122. 53 Trial ts 123. -- 28 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 29 The liquid smelt of petrol or methylated spirits. She heard the flicking sound of what she thought to be a lighter, and saw flames rolling up her chest towards her face.54 She was in agony, describing a feeling that the skin was being ripped from her body. Ms Moiler managed to unbuckle her seatbelt and get out of the car. She then pulled all her clothes off except for her knickers. She asked her husband, 'What the fuck Pete?' and was screaming for help.55 Witnesses reported hearing screams from a woman. CCTV footage from a nearby property contained audio which captured sounds from the incident.56 92 There was a moment when Ms Moiler realised that she was no longer on fire. She continued screaming and testified that Mr Moiler laughed and asked her, 'What's wrong, bub?' She ran down to a nearby neighbour's property which she knew to have a creek but, in her panic, she irrationally feared that the creek may have fuel in it. She was assisted by a neighbour, Ms Lynda Moffatt, who noticed that Ms Moiler was very frightened by her approach. Ms Moiler yelled to Ms Moffatt to ask 'who was it'.57 Ms Moffatt doused her with water from a hose. Ms Moiler said to Ms Moffatt, 'I don't know why he did this'.58 93 Ms Moiler testified that she looked back to her car, and saw the silhouette of a man she thought to be her husband, carrying something like an oil drum and splashing liquid onto the bonnet of her car and up towards the windscreen. She could not recall if the car was on fire. Another witness, Ms Shantelle Williams, testified that she saw a man, who she described as wearing a flannel shirt, calmly pouring something from a jerry can over the car from the passenger side in what she took to be an attempt to put out the fire. 94 The State alleged that man was Mr Moiler, pouring accelerant onto the car. While the alleged action was only just after the alleged offence, it could be described as post-offence conduct, particularly in the manner in which the prosecutor sought to use it, which is the subject of this appeal. It was also the subject of the concession by the State that the appeal ought to be allowed. 95 Ms Moiler suffered burns to 38% of her body, including full-thickness burns. She had to be placed into an induced coma for 54 Trial ts 124. 55 Trial ts 129. 56 Exhibit 6 (camera recording from 13 Honey Street, Mount Helena). 57 Trial ts 316. 58 Trial ts 316. -- 29 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 30 three weeks. The fact of those injuries, and that they amounted to grievous bodily harm, was admitted by Mr Moiler at trial. 96 The defence case, based on the account given by Mr Moiler to neighbours immediately after the incident and then eventually to police, was that Ms Moiler had brought the accelerant with her in her car and attempted to squirt him with it, but her attempt had backfired when most, but not all, of the accelerant ended up on her and ignited. Mr Moiler was also burnt, though much less seriously than her. He denied squirting accelerant onto her, or igniting it. 97 Ms Moiler's evidence did not completely match what could be heard on the audio from the nearby CCTV. While she could be heard screaming and yelling for help, the prosecutor opened on the basis that the jury would be able to hear Mr Moiler on that audio asking her, 'What the fuck just happened? What did you have all that fuel for?', and also calling out for someone to call the police.59 98 It was uncontroversial that, immediately following the incident, Mr Moiler had voiced at least part of his account to several neighbours. That evidence, what the prosecutor made of it in his closing address, and how the learned trial judge directed the jury about it, is also the subject of this appeal. 99 Mr Moiler participated in three interviews with police, first, a brief interview while being treated by medics at his mother's house, a second interview at the hospital while being treated and then, finally, a lengthier interview (main interview) with police. He also engaged in a conversation with his mother while he was in custody, which was covertly recorded by police. 100 The prosecutor pointed to alleged inconsistencies between what Mr Moiler had told police and certain things he had told his mother as a reason to reject his account. The prosecutor's submissions to the jury in his closing address characterising those inconsistencies as lies were also referred to in Mr Moiler's written submissions in support of his conviction appeal. However, during the hearing before this court, Mr Moiler's counsel indicated that there is now no complaint about how the suggested inconsistencies were dealt with by the prosecutor or the learned trial judge.60 59 Trial ts 28. 60 Appeal ts 4. -- 30 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 31 Mr Moiler's account to police 101 Mr Moiler did not testify at trial. His account was contained in what he said to several neighbours immediately after the incident and then later to the police. His brief accounts to the neighbours will be detailed at [142] - [153] below. 102 Following a 000 call by Mr Moiler to police about the incident, he was interviewed briefly while being treated by medics outside his parents' house.61 He gave an account to the effect that Ms Moiler had turned up in her car, and he was outside the car but leaned down at her window. He implied that something was thrown towards him, something white, which he initially thought was a half-brick or something; he put his arm up to block it and felt wetness for a moment 'and it went both ways, and then fucking flames'. 103 He described pulling Ms Moiler out of the car and helping to pull her clothing off and patting her down, and described himself yelling for the police and the fire brigade. When asked how she caught on fire, Mr Moiler said he did not know. The police explored with him whether he had been smoking; his answer was equivocal, but there was no suggestion at trial that he had been. 104 Mr Moiler said that his wife had moved out a week before and 'it's just been getting on more and more messy'. He said he had probably stirred things up a bit by asking her to come and get her things, and not keep coming back and forth, and then telling her that night that he would just pack her things up himself and bring them over to her, 'like, and then fucking, that's when the car pulled up at the end of the driveway'. 105 Mr Moiler was further interviewed that evening at the hospital where he was receiving treatment, which interview was captured on body worn camera.62 It is unnecessary to summarise that interview. 106 The main interview took place on the evening of 3 June 2023 at the Perth Watch House.63 Mr Moiler told police that, at dusk, he was taking Ms Moiler's things out to his car when he saw the headlights of a car pull up, then turn off. He walked down to the car and recognised his wife. She was rummaging in the centre console, and he approached. He asked either what she was doing or what she was up to, and she grinned back at him, which made him think she was in a good mood. 61 Exhibit 8 (disc of edited body worn footage from Constable Stringer). 62 Exhibit 9 (disc of edited body worn footage from Fiona Stanley Hospital). 63 Exhibit 13 (disc of edited interview of 3 June 2023). -- 31 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 32 107 Mr Moiler said he leaned with his arm resting on the edge of the driver's window, then noticed that Ms Moiler had something between her legs like a cup, or a bottle and she was rummaging with her hands. He said he smelt petrol, and thought 'keep your wits about you'. Then she moved, a flinch and a hand movement, and he reacted automatically by moving his arm in a blocking motion, pushing her off, because he had been hit by things in the past; he felt wetness on the back of his hand and then everything was on fire. He said the car went 'boom' and he could not explain it. Although Mr Moiler said that he was not saying that she had thrown fuel on him, he said he felt wetness on his arm and everything caught fire on her hand. He told police that the next morning he felt bad for putting his arm up because 'it probably fucked with her' and if he had not done that, 'it would have been me'. 108 He denied that he had carried any accelerant down to the car. He said that he could not account for neighbours hearing the sounds of a star picket hitting the road and denied that he had brought a star picket with him. When told that neighbours had heard a man and woman arguing prior to the explosion, he said that he had not thought that he and his wife were arguing, but agreed they must have been. 109 He said the fire was 'fucking massive', that he had pulled the door open and screamed 'someone call the fucking police' and 'get the ambulance'. He said she got out of the car and the fire was all over her. He described frantically brushing at her, but the fire kept relighting. He was also burning. He helped rip her clothing off so that she was down to her knickers, while the windows had popped on the car and the flames were soaring, including in the vents and the grill. Ms Moiler sat down on the road. He described a neighbour arriving and telling him to get some water onto his beard, and then he and the neighbour both turned around and Ms Moiler was gone. Later he said that she had obviously gone down a particular driveway and he knew she was with some girls, and was lying down. Again, police explored with him whether he had been smoking. He said that he did not have a smoke. 110 Mr Moiler was not asked in his interview whether he had poured anything on the bonnet of the car after the fire had started, or whether anyone else had. Nor did he volunteer that he had poured anything on the car. The police did not have that information from Ms Moiler at the time they interviewed Mr Moiler. 111 The interviewing officer informed Mr Moiler that his wife had taken out a restraining order against him that morning. Mr Moiler said that he had not known that, but knew from Lippy that she got one 'for -- 32 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 33 the weekends or something' but said that he still 'hadn't got to the bottom of it'. Issues at trial 112 The critical issue at trial was whether the State had proved beyond reasonable doubt that Mr Moiler caused the injuries to Ms Moiler by squirting her with accelerant and then igniting it. 113 The State's case depended upon the jury accepting that Ms Moiler's account was truthful and accurate. Her account was capable, without any further evidence, of grounding the entirety of the prosecution case. As the learned trial judge directed the jury, she was the only witness to give direct evidence as to how the fire started. 114 Her direct eyewitness account, if accepted, established that Mr Moiler had squirted her with accelerant and set her alight, from which she suffered patently serious injuries. A formal admission was made by Mr Moiler that the injuries had amounted to grievous bodily harm. Medical evidence was also led, but even without any medical evidence or admission, the jury could have inferred from her account that she had suffered grievous bodily harm. 115 Ms Moiler could not testify as to Mr Moiler's intent. That element of the State's case depended upon the jury drawing an inference against Mr Moiler that, in squirting accelerant onto his wife and setting her alight, he must have intended to maim, disfigure, or disable her, or do her some grievous bodily harm. That inference was readily to be drawn from Ms Moiler's evidence of what he had done, if her evidence was accepted. 116 The prosecution case was therefore one based upon direct evidence, with some additional pieces of circumstantial evidence which, depending upon the jury's assessment, did or did not add to Ms Moiler's direct evidence. There was no piece of circumstantial evidence that was indispensable to the State's case. 117 The only reasonable possibilities open on the evidence were that either Mr Moiler or Ms Moiler had been responsible for her injuries. There was no suggestion of the involvement of some third party. 118 Nor was it reasonably possible that either of them had been mistaken about which of them had caused the fire which injured Ms Moiler. Her account was either true or false in its essentials, just like Mr Moiler's denials of responsibility were either true, or false. -- 33 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 34 119 If Mr Moiler was responsible, there was no suggestion that his conduct could have been authorised, justified or excused by law. There was no suggestion at trial that Mr Moiler had accidentally caused her injuries. 120 If there was a reasonable possibility that his account was true, the proper verdict was one of 'not guilty'. The State case depended upon the jury accepting her account, and rejecting his. Ground of appeal 121 There is one ground of appeal, with three separate particulars: There was a miscarriage of justice because the prosecutor invited the jury in his closing address to impermissibly reason that the appellant's post-offence conduct, denials and lies was positive evidence of his guilt. Particulars 1. The prosecutor in his closing address relied on the appellant's post-offence conduct, denials and lies as evidence of consciousness of guilt, when he opened his case on the basis that this evidence was circumstantially relevant or relevant to credit only. 2. The prosecutor impermissibly invited the jury to use the appellant's post-offence conduct, denials and lies as evidence of consciousness of guilt of the offence charged when this evidence was not admissible for this purpose. 3. The trial Judge's directions did not address the change in the prejudice occasioned from the change in the State case. 122 The 'post-offence conduct, denials and lies' refer to the allegation that Mr Moiler poured fuel onto the bonnet of the car, his conversations with the neighbours after the incident and - prior to the hearing of the appeal - the alleged lies to police in his interviews based on inconsistencies between his interviews and the recorded conversation with his mother. 123 While the prosecutor's handling of the third category, the alleged lies in the main interview, is no longer the subject of the appeal, it will still be relevant to understanding the prosecution case and the learned trial judge's direction to the jury. The State's concession 124 The State concedes the appeal against conviction on the basis that a miscarriage of justice was occasioned by a combination of the -- 34 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 35 prosecutor's closing submissions to the jury concerning the allegation that Mr Moiler poured fuel onto the bonnet of the car immediately after the incident, relying upon that evidence as post-offence conduct evidencing a consciousness of guilt, and a failure of the learned trial judge to address the jury as to how they could permissibly use that evidence and 'more importantly, how they could not'.64 The State did not seek to invoke the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) by arguing that no substantial miscarriage of justice had occurred, and conceded that the conviction should be set aside and a retrial ordered. 125 The State accepts that the prosecutor's submissions concerning the alleged pouring of fuel on the bonnet did convey to the jury that, if they were satisfied that Mr Moiler poured fuel onto the bonnet of the car after the incident, he did so because he was guilty of the offence. The State submits that:65 This could have been a permissible line of reasoning in circumstances where the State had identified, with precision, reliance upon evidence of post-offence conduct, and the appellant had had the opportunity to object to the use of the evidence in that way and seek a ruling from the trial judge. Regrettably, that did not occur. It is also unfortunate that the issue - as it arose for the first time in the prosecutor's closing address - was not identified and addressed at the time. Instead, the trial judge's directions in respect of this issue served, effectively, to elevate the post-offence conduct to a pillar of the State's circumstantial case. 126 By contrast, the State does not concede the appeal in so far as it relates to the manner in which the prosecutor dealt with the issue of what Mr Moiler said to the neighbours, or the manner in which the learned trial judge directed the jury about those aspects of the case. 127 First, it is necessary to detail the evidence concerning the three categories of evidence of post-offence conduct, denials and lies. It is important to understand how the prosecutor dealt with his case as a whole, rather than piecemeal. The 'post-offence conduct, denials and lies' 128 There were three types of evidence encompassed in the description, which are summarised below. 64 State's submissions on appeal [17]. 65 State's submissions on appeal [19]. -- 35 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 36 Evidence relating to the alleged pouring of fuel on the bonnet of the car 129 Ms Moiler testified that, after she had been burnt and had fled to a neighbour's property, she did 'at some point' look back towards her car. She gave evidence as follows:66 Okay. Did you at any point look at the car?---I did see - I did - I did at some point see Peter's silhouette figure motioning with - with what looked like an oil drum splashing onto the bonnet of the car. So you're gesturing with your lower arm side-by-side - - -?---Yes. - - - in sequence. Yes. And - - -?---Yeah. - - - it looked like Peter's silhouette figure?---Yes. Where was he in relation to the car?---Standing in the front of the bonnet. So standing near the bonnet?---Yeah. And you mentioned something - some - carrying something or doing something with something?---Yes. Carrying something, and there was liquid splashed on the car again and again and again. Okay. And what did it look like - - -?---But I looked at him - - - - - - coming out - - -?--- - - - for a few seconds. So it was a few seconds, and how far away were you?---I don't really know. Like, it's - it's not too far, really, from where the car was to the home, but I would maybe say halfway, maybe. I - I can't actually recall, to be honest with you. You - you can't recall how far you were away when you saw this?---No. Okay. And what did it look like the liquid was coming out of?---It looked like it was coming out of a round container, a cylinder container. Okay. And where did it look like liquid was being splashed onto?--- From the middle of the bonnet up towards the windscreen. Okay. And it was a silhouette you - you took to be Peter?---Yes. Yes. Okay. So are you still at - when the old lady is helping, are you still at Dallas Kiefer's property?---Yes. 130 She was cross-examined:67 66 Trial ts 134 - 135. 67 Trial ts 248 - 249. -- 36 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 37 Do you agree that yesterday you said that at the point in time that you've gotten to the creek, you didn't really have eyes to be able to see what was going on?---I couldn't see any further than, like, the driveway of the property because it was, like, fully dark by then, so I couldn't see. And by the time you get to that house on Mill End, you don't really have vision of the Honey Street road. So how far away from - from the car are you at the point you turn around?---I don't actually know. Are you close to it?---I'm not so close to it. Can you feel heat coming off of it?---No. And what does the car look like at the point in time that Mr Moiler was doing that?---It was just like a silhouette of the car so - and like I said, it was only for a few moments that I was watching, and then I was off because, you know - - - But in those few moments that you were watching you were able to see a cylindrical object with liquid coming out of it?---Yeah. And you're sure about that?---I seen the motion of him, yeah. Did you see a motion, or did you see an object?---I seen the motion and - the motion, and I could see parts of the container that he was holding, because it was - his back was to me by that stage. And I'm going to suggest to you, Ms Moiler, that that never actually happened?---It's incorrect. You didn't see Peter doing that?---It's incorrect. Now, when that was happening, Ms Moiler, was the car on fire?---I don't actually recall seeing it on fire. I don't have a memory. 131 One of the neighbours, Ms Shantelle Williams, gave evidence of hearing a 'disgruntled' exchange, a little bit of arguing in the distance, and approaching her back fence line to retrieve her barking dogs when she heard a 'terrifying scream' of, 'Somebody help me. Please, someone call the police'.68 It was a woman's voice.69 132 Ms Williams ran inside to grab her mobile telephone, came back out and called 000. She saw a vehicle with a smallish fire at the front of it, and called out, 'It's okay, I've called the police', or something to that effect. She heard the woman still screaming, saw the fire get bigger and then realised that it was the car that was on fire. She heard 68 Trial ts 296. 69 Trial ts 297. -- 37 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 38 the tyres blow, which was very loud throughout the valley. She said the car was 'just one big flame' and she heard loud banging sounds. The car horn also went off and continued to sound until the fire brigade arrived.70 133 Acting on advice, Ms Williams did not approach the burning car. She called out from a couple of locations on her land to see if any neighbours were outside, and then went back down her block to a spot about 15 m away from the car. The front of the car was facing her, and she saw someone standing on the passenger side of the car, with 'a jerrycan, maybe, some kind of metal object in their hands'.71 134 It was her impression that the person was 'assisting to put out the fire'. The person was male but, beyond him wearing an unbuttoned flannel shirt, with maybe a jumper underneath, she could not describe him. She said he had a metal container, the sort one would put water or other liquids in, demonstrated to be about 'a foot by a foot' in size, 'and was putting out the fire, or of a similar effect'.72 He appeared to be very calm.73 It seems to have been common ground that Mr Moiler was not wearing a flannel shirt that night. 135 Ms Williams was not cross-examined by defence counsel.74 136 Another witness, Mr Cameron Symcox, whose statement was read to the jury,75 lived nearby and is a firefighter. He went to the scene and, before emergency services arrived, borrowed a torch from one of the people outside and approached the burning car and shone the torch into the cabin to look for any shapes of occupants, but could see none.76 He did not say what he was wearing. 137 Another neighbour, Mr Christopher Tsang, whose evidence is detailed at [143] - [148] below, also approached the car. He was not asked what he was wearing. 138 An expert witness, Detective Senior Constable Pearsall of the Arson Squad, who was qualified in the interpretation of fires, examined Ms Moiler's vehicle on 26 June 2023 (24 days after the fire) at the police holding yard, and prepared a report on the damage. 70 Trial ts 297. 71 Trial ts 298. 72 Trial ts 299. 73 Trial ts 299. 74 Trial ts 302. 75 Trial ts 386 - 387. 76 Trial ts 389. -- 38 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 39 139 He testified77 that the fire had commenced within the passenger compartment of the car. As to the exterior, the worst damage was at the driver's door, which may have been closed when the fire began but was open as the fire was active inside the car. Both front tyres were consumed, whereas the back tyres remained inflated. The fire had burned for longer in the front of the compartment. 140 No accelerants were detected within the passenger compartment. Detective Senior Constable Pearsall testified that for various reasons - the level of consumption caused by the fire, the use of water by those who extinguished the fire and exposure to weather - that was not unexpected. 141 He was unable to determine whether any ignition source or accelerant had been applied to the bonnet of the car.78 He said there were no patterns on the bonnet which indicated that. He said that he would mostly expect such patterns if fuel had been applied, but expressed a reservation based on the delay between the fire and his examination of the car, during which time the car had not been protected from the weather.79 There were radial patterns on the bonnet of the car consistent with fire activity from within the car, meaning from the interior compartment, or from the 'plenum' area between the windscreen and the bonnet where air conditioning vents are located. Evidence of Mr Moiler speaking to his neighbours shortly after the incident 142 This category consisted of what Mr Moiler said to his neighbours in two conversations, the first with Mr Christopher Tsang and Mr Laurence Shepherd at the scene immediately after the incident, and the second with Mrs Janet Peppler, a short distance from the scene and a very short time later. The State called all three neighbours to testify. 143 Mr Tsang was inside his house just down the road from the Moilers' house. His partner alerted him to a noise outside and he went out and heard a woman screaming and a car horn, and saw flames.80 He ran down to the car to see if anyone was injured and to assist, while his partner called emergency services. He got to within a few metres of the car. He could still hear the woman screaming, but from down the road, at Mill End.81 77 Commencing at trial ts 412. 78 Trial ts 415. 79 Trial ts 416. 80 Trial ts 274. 81 Trial ts 274. -- 39 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 40 144 He saw a car (a Holden Astra being driven by Mr Moiler) coming down the street, which squeezed past the burning car. He stopped the car and spoke to Mr Moiler. As they spoke, he noticed Mr Moiler's beard appeared to be singed, and there were burns to one of his arms. 145 Mr Moiler told Mr Tsang that there was no one in the burning car. Mr Tsang said that one of his concerns was that there had been children from the noise he had heard, but Mr Moiler assured him that no children were in there, and they were at his parents' or mother's house.82 He told Mr Tsang that his 'ex' had been removed from the lease for the house, and that she had tried to kill him by squirting fuel on him from a Pump bottle and setting him on fire. 146 Mr Tsang spoke to Mr Moiler about leaving the scene. Mr Moiler said that his 'ex' was half-Aboriginal and that her family was likely on their way, so he was 'out of there'.83 Mr Tsang let him know that the police were on their way as well as the ambulance and fire brigade, and offered to help him to get some cold water onto his burn if he would pull into Mr Tsang's driveway. Mr Moiler pulled into Mr Tsang's driveway for a short time and Mr Tsang went to get the hose, but then Mr Moiler pulled back out. Mr Tsang discussed with him that it 'probably wouldn't look good taking off from the event',84 but Mr Moiler gave him his full name and where he was heading to - his mother's house - provided the address, and left. None of the emergency services had arrived yet. 147 Not surprisingly, the prosecution did not rely upon flight as evidence of guilt. 148 In cross-examination, Mr Tsang testified that the gap in time between his partner hearing the bang and telling him that there was a car crash, and him going outside, was a matter of seconds and, when he approached and saw the car, it was 'fully engulfed' in flames.85 149 Mr Shepherd, another resident of Honey Street, heard a woman screaming and went outside, then heard a man yelling, 'Call the police'.86 Mr Shepherd grabbed a torch and went down into the street, meeting up with Mr Tsang on the way, and they saw a burning car and small patches of cloth or something burning in the street, a couple of 82 Trial ts 276. 83 Trial ts 277. 84 Trial ts 277. 85 Trial ts 284. 86 Trial ts 350. -- 40 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 41 metres from the car.87 The front of the car was mostly aflame and starting to explode, 'like pop and explode'.88 150 Mr Shepherd was with Mr Tsang when Mr Moiler drove through Honey Street and spoke to them. Mr Shepherd said they did not question him, but Mr Moiler told them that his wife had tried to firebomb him with petrol, but he had managed to fend off most of it, and it had landed on her.89 He said the lease for the house had finished and his children lived with his mother, and that was where he was going. He said his ex-wife had called him and told him that she was coming with petrol and guns to get him. They told Mr Moiler that he should wait until the police arrived and that he could park in the neighbour's driveway, and Mr Shepherd thought Mr Moiler stayed for a while, but then left. He agreed that Mr Moiler had been visibly shaking.90 151 Mr Shepherd said that he had not heard the woman screaming by the time he was down at the car, but he knew she was down there somewhere, and agreed that he understood that others were assisting her.91 152 Mrs Peppler is an elderly lady who lived nearby to the Moilers' house, with her husband. She had poor eyesight.92 She testified that Mr Moiler had visited her the day before the incident to collect his dog, which had got into her property. Mr Moiler was agitated and frenetic and complaining about Ms Moiler and her brother causing trouble.93 He had also previously called in when an ambulance came for Mrs Peppler after she broke her hip. 153 Mrs Peppler testified that, on the evening of the incident, she heard a boom and her dog barking between 6.00 pm and 7.00 pm, and went outside but heard nothing more. She then heard a car coming down her driveway very fast and went outside. Mr Moiler got out of the car and held out his left arm, which appeared blistered, and said, 'Kirsten set the - the car on fire, but you're all right'.94 In cross-examination, Mrs Peppler said the first thing he said was, 'You're all right', and then, 'Kirsty set the car on fire'.95 Mrs Peppler asked 87 Trial ts 351. 88 Trial ts 352. 89 Trial ts 353. 90 Trial ts 354. 91 Trial ts 353. 92 Trial ts 287. 93 Trial ts 289. 94 Trial ts 291. 95 Trial ts 293. -- 41 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 42 where the children were, and Mr Moiler said that they were at his mother's house. She told him to go to his mother's house. Inconsistencies between Mr Moiler's interview and the recorded conversation with his mother 154 This category of evidence relates to four alleged inconsistencies between what Mr Moiler said to police in his main interview, summarised at [106] - [111] above, and what he said to his mother during a conversation with her while he was in custody, which was covertly recorded by the police. 155 While this is no longer the subject of any complaint, counsel for Mr Moiler submits that a direction in the trial judge's charge to the jury about lies was confined to this evidence and was not general in nature so as to extend to other suggested lies told by Mr Moiler. The direction will be detailed later. Consequently, some brief mention needs to be made here of the suggested inconsistencies. 156 It was the prosecution case that, in the covertly recorded conversation with his mother: (a) Mr Moiler said that he had been aware prior to the incident that his wife had made an application for a violence restraining order, whereas he told police that he only believed that she was going to do so; (b) Mr Moiler said that he had been consuming significant amounts of methylamphetamine during the period prior to the incident, whereas he minimised his drug use when speaking to police and maintained that Ms Moiler was abusing methylamphetamine; (c) Mr Moiler accepted that he had carried a star picket when he went to the car, because he expected that his wife might confront him, whereas he told the police that he did not know who was in the car, and that he had not been armed when he went to the car just prior to the incident; and (d) Mr Moiler said that Ms Moiler had squirted him with accelerant from a Pump water bottle, whereas he told the police that he did not know what sort of container the fuel had come from, perhaps a cup or a bottle. 157 All of the above matters were said by the State to be inconsistent with what he had told the police in the main interview. -- 42 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 43 The prosecutor's opening address 158 The prosecutor opened his case by first giving the jury a summary of the facts which would be alleged against Mr Moiler. 159 In relation to the evidence of what was said by Mr Moiler to the neighbours, the prosecution opened by saying:96 What Peter Moiler yelled out for the benefit of anyone listening, what he told his neighbours and what he told police was in effect, that Kirsten Moiler did this to herself. The burden will be on the prosecution to satisfy you beyond a reasonable doubt that this is not true, that Kirsten Moiler did not do this to herself, but rather that it was her husband, Peter, who sprayed her with fuel and who set her alight. Peter Moiler does not have to satisfy you that his version of events is true. It is the prosecution which has to satisfy you that his version of events is false and what Kirsten Moiler will tell you happened is what actually happened. The prosecution will naturally be relying primarily on the evidence of Kirsten Moiler herself. (emphasis added) 160 After detailing more of the evidence to be presented, the prosecutor told the jury:97 What will loom large in this trial is a contest between the evidence you will hear Kirsten Moiler give, and what Peter Moiler told his neighbours and told police. As I've said, the onus will be on the prosecution to satisfy you beyond a reasonable doubt that Peter's account of what happened is false and that Kirsten's is true. 161 The prosecutor summarised what the jury would hear Mr Moiler say in his interview with police. The prosecutor then alluded to Mr Moiler's conversation with his mother as 'one further version of events that Peter Moiler gave when you might think he did not know the Police were listening'.98 162 After referring to the suggested inconsistencies detailed at [156] between what Mr Moiler told police during his main interview and what he told his mother, the prosecutor told the jury that it was the State's case that Mr Moiler 'was being deliberately untruthful' in his main interview, and went through the list of inconsistencies. The 96 Trial ts 30 - 31. 97 Trial ts 40. 98 Trial ts 43. -- 43 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 44 prosecutor drew those points together in his opening to the jury, telling them:99 The prosecution case is that, when you consider the inconsistencies between what Mr Moiler told police and what he told his mother, his claims that Kirsten Moiler did this to him have no credibility whatsoever and should simply be disregarded. (emphasis added) 163 Toward the end of his opening address, the prosecutor referred to CCTV footage of the BP Glen Forrest service station from the day prior to the incident, which showed Mr Moiler filling up a red 5 or 10-litre jerry can with fuel and putting it into the back of his car. The jerry can was not there when police seized the vehicle more than a day after the incident. In this context, the prosecutor told the jury:100 This evidence will be relevant to what Kirsten Moiler will tell you, namely that she saw her husband pouring something out of a container on the bonnet of the car after she had fled from it. The prosecution case is that Peter Moiler poured fuel onto the bonnet of the car after this incident and that this is not the conduct you would expect an innocent victim to do, destroying a car, but what you would expect the perpetrator of the incident to do, get rid of any evidence. (emphasis added) 164 Finally, the prosecutor played CCTV footage from two neighbouring properties, with audio, to the jury, which the prosecutor warned would be confronting, and told them that they would hear [t]he voice of a man who, in the prosecution case, is not offering her any help, but is trying to ensure that anybody in the neighbourhood hears him denying any responsibility for what had just happened to her.101 (emphasis added) Defence counsel's opening address 165 It is not necessary to detail the opening address made by defence counsel at trial. Only two points need be made. First, defence counsel told the jury that, despite the fact that the jury would hear expert reports, see CCTV footage and 'independent witnesses, by way of a raft of neighbours', the prosecution case 'lives and dies on your assessment of the evidence you will hear given by Kirsten Moiler'. Secondly, 99 Trial ts 46. 100 Trial ts 46 - 47. 101 Trial ts 48. -- 44 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 45 defence counsel asked the jury102 to listen carefully to the evidence to be given by the neighbours at home that night [a]nd ask yourselves, particularly with respect to the evidence you will hear of the interactions with Peter Moiler, whether you can reconcile their statements with the allegation you have before you. (emphasis added) The prosecutor's closing address 166 Early in his closing address, the prosecutor told the jury:103 You have probably heard the old saying, 'A lie can travel halfway around the world while the truth is still strapping it boots on'. 167 He contrasted the physical condition of Ms Moiler following the incident, to that of Mr Moiler. 168 The prosecutor said:104 Even before speaking to police, Peter Moiler was getting out his version of events. You might think he was very quick off the mark with his version of events, while his wife was still lit up. 'What the fuck just happened? What did you have all that fuel for?' Then he went back up to the house, got in the Astra, and drove back down the driveway, past the burning car, where he stopped to speak to his neighbours. Each of them, Mr Tsang and Mr Shepherd, they told you that Mr Moiler told them what had happened. He told them he was on his way to Sawyers Valley where his kids were, but he didn't go there straight - he didn't go straight there at all. Instead he drove around the block to speak to Janet Peppler as well. Peter Moiler was telling anyone who cared to listen. He was going out of his way to tell people that he was the victim. The submission the State makes to you is that Peter Moiler was getting his lie known all over Mount Helena, while the person who has ultimately given you the truth was in an induced coma where she would stay for several weeks. 169 The prosecutor told the jury105 that, if what Mr Moiler told everyone might have been the truth about who sprayed who with fuel that night; if this is a plausible scenario that gives you some reasonable doubt, then the prosecution has failed to prove this charge 102 Trial ts 56. 103 Trial ts 475. 104 Trial ts 476. 105 Trial ts 477. -- 45 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 46 and the only proper verdict for you would be one of not guilty. (emphasis added) 170 After that commencement, and consistent with his opening address, the prosecutor set out his aims106 for his closing address: My purpose in speaking to you this morning is to convince you, if I can, of two things: firstly, that Mr Moiler's statements to bystanders, to neighbours, to police, the version or versions of events he gave them are not credible; and secondly, that what Kirsten Moiler told you in her sworn evidence in this trial is credible, and you may be satisfied she told you the truth. Starting with Peter Moiler, the prosecution says to you that you can't rely on what he has said about this matter, because he is simply all over the place in what he said to people about what had happened. (emphasis added) 171 The prosecutor then invited the jury to consider the most important version of events that Mr Moiler had given to be that contained in the recorded conversation with his mother. The prosecutor contrasted passages from that conversation to Mr Moiler's main interview and detailed the series of suggested inconsistencies summarised at [156] above. 'Why all these competing versions?', the prosecutor asked, before submitting to the jury107 that the inconsistencies suggest a man who isn't speaking the truth but who is still constructing in his own head an alternative version of events to get there - and when speaking to person B or person C, has forgotten what he's already said to person A. 172 The prosecutor then turned to the contrast between what Mr Moiler had told his mother, as opposed to the police, of his own methylamphetamine use in the lead-up to the incident, before then examining evidence about Mr Moiler's behaviour at that time, including the text messages sent to Ms Moiler, the agitated state that he was in when he spoke to his elderly neighbour Mrs Peppler the day before, and the 'frenetic energy' with which he had packed up Ms Moiler's possessions into his car, demonstrating, the prosecutor submitted, anger and a lack of self-control over his emotions.108 173 The prosecutor submitted that Mr Moiler had downplayed in his main interview what he had learned from Lippy, when compared to what he had told his mother, namely that he knew that his wife was 106 Trial ts 477. 107 Trial ts 479. 108 Trial ts 482. -- 46 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 47 'hanging out' with Lippy and 'that's why she definitely wasn't gonna fucking get the kids', that 'she had taken out this VRO, so she should get a weekend VRO', and that Lippy was 'fucking tripping'.109 The prosecutor submitted this showed Mr Moiler's anger at his wife in the lead-up to the incident. 174 Thus far, the prosecutor had been following a theme of seeking to persuade the jury as to why they should reject Mr Moiler's version (or versions) of events given to various people. The prosecutor submitted110 that the events of the day before and the day of the incident had created the conditions in which this 'next-level violence he is accused of in this trial became possible, because these things don't just happen out of the blue, do they?' 175 The prosecutor then moved to post-offence conduct, and turned first to the pouring of more fuel on the car:111 When you look at Mr Moiler's conduct after his wife is set alight, we put to you that it matches what you would expect of a man who had done to her what she told you he did. Firstly, there's the evidence of him pouring something over the car. 176 After detailing some of the evidence in support of that allegation against Mr Moiler, the prosecutor, consistent with what he had said in his opening address quoted at [163] above, told the jury: If Mr Moiler was the innocent victim of this incident, if this was something she did to him, well, what purpose could be served by burning the car? He would be destroying the evidence of what somebody had done to him. But if Peter Moiler was the perpetrator of this incident, then the purpose in burning the car is obvious. He would be destroying the evidence of what he himself had done. (emphasis added) 177 The prosecutor then turned his attention to the conversations between Mr Moiler and the neighbours immediately following the incident:112 What Peter said to Christopher Tsang also fits uneasily with the version of events he was trying to put out there. He said something about his wife's ethnicity, and he said her family is more than likely on their way, so he was out of there. What reason would he have to be afraid of Kirsten's family if he were the innocent victim of an attack by her? 109 Trial ts 483. 110 Trial ts 484. 111 Trial ts 484 - 486. 112 Trial ts 485. -- 47 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 48 Then there's his visiting Janet Peppler. I mean, she is his neighbour. But it sounds - I mean he could have walked there quicker than he could have driven there … Why walk there at all if his priority is getting out of there and getting to his kids? I mean, it might have been natural to give an explanation to Christopher Tsang on his way out, but driving all the way around the block in order to visit Janet Peppler, you might think that shows the concern that she might have heard something or seen something, and he needed to get his version to her quick. 178 The prosecutor wrapped up that submission:113 The prosecution puts to you, not only did all the conditions exist in Peter's life before this incident, to make an attack on his wife of the kind she describes feasible, plausible, but his behaviour after the incident is more consistent with the conduct of a perpetrator than of the victim he was trying to tell everyone he was. (emphasis added) 179 Next, in line with the structure he foreshadowed for his closing address, the prosecutor moved from persuading the jury to reject Mr Moiler's version of events to advocating for an acceptance of Ms Moiler's evidence. In making that shift, and closing his submissions about Mr Moiler's account, the prosecutor told the jury:114 To find Peter Moiler guilty, though, it isn't enough to reject his version of events that she somehow splashed him and herself with accelerant. You must positively be satisfied that he did this to her. [The] Prosecution puts to you that you can and should be satisfied of this because Kirsten Moiler was a witness whose evidence was worthy of your acceptance. (emphasis added) 180 The summary of Ms Moiler's evidence and the submissions in support of her credibility were detailed and need not be repeated. 181 After detailing Ms Moiler's evidence about the star picket being thrown into the car, past her shoulder, and then the accelerant being squirted at her from the bottle, the prosecutor explained to the jury that the State was not suggesting that Mr Moiler had 'walked down to the car with a fixed premeditated intention' to set her alight but, rather, that he was angry with her, apprehensive for his own safety, and so went armed with a star picket and a handheld bottle of fuel and, 'in a moment of sudden agitation', had committed the offence, spraying her with the accelerant and then 'flicking his lighter'.115 There had been evidence in the trial that both Mr Moiler and Ms Moiler had habitually used 113 Trial ts 486. 114 Trial ts 486. 115 Trial ts 492. -- 48 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 49 handheld bottles of fuel for household purposes like lighting barbecues or fires. 182 The prosecutor submitted that Mr Moiler may have been shocked by the reality of what he had done. The prosecutor continued:116 But he was quick thinking to respond defensively - to call out things that you might expect an innocent victim to say. 'What happened?' While his wife is on fire and calling out, 'Help me', Peter Moiler says, 'What are you doing?' I mean, what she's doing is trying to get out of the car. And then he has the presence of mind to say, 'What the fuck just happened?' And 'What did you have all that fuel for?' While she's calling out, 'I need water', he's saying, as an innocent man might, 'Somebody call the police.' It's more important, you might think, for him to present himself as the kind of man who wants police to come than to actually do anything himself - to call police or ambulance or the fire brigade. He leaves that for other people to do. It's a full 20 minutes before he gets on the phone himself. And as for helping his wife, as for alleviating her pain and suffering, he leaves that to other people to do as well. What he was about, you might think, was already selling the story. 'I didn't do this, she did.' When Peter Moiler told police he didn't want Kirsten charged, he said it was because she'd had her comeuppance. She'd had her comeuppance. This isn't magnanimity on his part. You might think it's consistent with somebody who wouldn't want the police to investigate the incident too much, in case they got to the truth. 183 The prosecutor concluded his address by submitting that, first, if Mr Moiler did set his wife alight, then it is obvious he must have intended, 'even if momentarily', one of the harms alleged in the charge and, secondly, that the jury should accept Ms Moiler's evidence as the truth:117 Not just because Kirsten Moiler is a credible and believable witness, but because the other evidence in this trial - the CCTV footage, the expert medical evidence, what was going on in Peter's life before this happened, how he behaved after this happened - is consistent with - it fits with what she had told you. What the prosecution submits is that the evidence, considered as a whole, all points in one direction towards a verdict of guilty. (emphasis added) 184 Defence counsel raised no complaint with the learned trial judge about the prosecutor's closing address. 116 Trial ts 492 - 493. 117 Trial ts 494. -- 49 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 50 Defence counsel's closing address 185 Defence counsel then made a detailed closing address, directing the jury's attention to the various matters which counsel submitted cast doubt on Ms Moiler's version of events, cast doubt on the general plausibility of the prosecution case theory of Mr Moiler being armed with a star picket, a bottle of fuel and then more fuel in a larger container, and which gave an innocent explanation for certain actions of Mr Moiler, such as his purchase of fuel in a jerry can the previous day. Overall, counsel submitted, the jury should be left with a reasonable doubt. It is unnecessary to detail all of defence counsel's capable submissions. 186 Relevant to this appeal, as to the allegation that Mr Moiler doused the car with further accelerant after Ms Moiler had exited the car and ran, defence counsel submitted that the prosecution case suffered from the implausibility of an extra container of accelerant being handily available.118 Counsel also reminded the jury of the expert evidence that indicated, amongst other things, that the car burned longest and hottest in the interior, being the point of origin.119 187 As to the evidence of Ms Williams of a calm man in a flannel shirt trying, she thought, to put the fire out, defence counsel reminded the jury that no flannel shirt was located amongst Mr Moiler's things, no one else at the scene described Mr Moiler as calm and he did not appear on footage as calm, and that this evidence was of no assistance to the jury. 188 As to the prosecutor's submission that Mr Moiler had not run after, or rendered assistance to Ms Moiler, counsel reminded the jury that, on his account, she had just tried to set him alight, and he also knew that she was with some women and was being treated.120 189 Defence counsel tackled the prosecutor's submissions concerning Mr Moiler's post-incident conversations with neighbours:121 Now, returning to the evidence of Kirsten Moiler, the prosecution asks that you place great reliance on the words spoken by her after the fire to witnesses such as Lynda Moffatt. How could she possibly be lying or fabricating a story when you consider her context at the time? But on the other hand, that's exactly what they want you to believe that Peter Moiler has managed to do. 118 Trial ts 511. 119 Trial ts 512. 120 Trial ts 511. 121 Trial ts 506. -- 50 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 51 According to the evidence, both Peter and Kirsten spontaneously volunteered their versions of this incident to the first people they spoke to after the fact. The prosecution wants you to condemn Peter Moiler for volunteering his version, while at the same time using that factor as a matter which they say bolsters the credibility of Kirsten. 190 Defence counsel suggested that Ms Moiler, though the source (according to Mr Moiler's case) of the accelerant in her own car, may still have blamed him for the injuries she received, given his version of events that he put his arm up which caused the accelerant directed at him to splash back and to the side, presumably landing back on her.122 Counsel also suggested that the jury may doubt that Mr Moiler had the level of sophistication needed to falsely present himself as the victim throughout his post-incident conversations, as suggested.123 191 Following the completion of her closing address to the jury, defence counsel still raised no complaint with the learned trial judge about the prosecutor's closing address. The learned trial judge's charge 192 The learned trial judge instructed the jury that the State case depended upon their acceptance of Ms Moiler's evidence, and that the issue in the trial was whether the State had proved beyond reasonable doubt that Mr Moiler had splashed her with accelerant and then ignited that flammable substance.124 His Honour instructed the jury that they would not be able to find Mr Moiler guilty unless satisfied beyond reasonable doubt as to the truthfulness and accuracy of Ms Moiler's evidence, as she was the only witness to give direct evidence as to how the fire started. 193 His Honour then told the jury that, in addition to her evidence, the State relied in part upon circumstances to prove its case, and explained the concept of circumstantial evidence. His Honour summarised the circumstances relied upon by the State as follows:125 The State also relies on circumstantial evidence. Namely, it says that Mr Moiler was angry and agitated on the day and, in support of that contention, relies on the instant messages and SMS messages that were tendered in the course of the trial. The State says that the circumstances in which Kirsten Moiler's [possessions] were bundled into the car also demonstrate his anger. 122 Trial ts 506. 123 Trial ts 508. 124 Trial ts 520. 125 Trial ts 521 - 522. -- 51 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 52 They refer to or rely on what was said to be his practice in lighting fires using an accelerant. It relies on the CCTV footage of earlier that day, which appears - it's a matter for you - to record Mr Moiler purchasing petrol or something and placing that purchase into a jerry can. … The State also relies on what it says was Mr Moiler's conduct after the explosion and points to the record in which - it's a matter for you; this is a comment on fact - there appears to be a voice which is calling for police and not for first aid or an ambulance. The State also says that the conduct after the ignition included pouring fuel on the bonnet of the car to destroy it and says that that was conduct that, if you found to be established, was not conduct that was consistent with someone [who] was not involved, instrumentally, in igniting the fire. The State also points to what it says was conduct on Mr Moiler's part, of talking to and visiting neighbours in the immediate aftermath of the fire to get his version of the story out there. And the State's submission, essentially, is that he was very soon after the event trying to craft the narrative to ascribe responsibility for the ignition of the fire to Kirsten and to distance himself from that, and the State say that they are circumstances which support its case that, together with the direct evidence, you should conclude that Mr Moiler is guilty of the offence as charged. 194 His Honour also directed the jury that the State's case as to the element of intent to do grievous bodily harm rested upon the jury drawing an inference to that effect and gave a detailed inferences direction.126 195 His Honour gave the usual directions about the presumption of innocence, and the burden and standard of proof.127 196 After instructing the jury that Mr Moiler was not obliged to participate in an interview with police, his Honour observed:128 And across the board, again this is a comment, it appeared to be the case that Mr Moiler denied being responsible for either lighting the fire or for applying the accelerant. The defence position, and I emphasise the word position because the defence don't have a case, they don't have a job or an obligation to say, do or prove anything, was recorded by way of Mr Moiler in his [interview]. 126 Trial ts 522. 127 Trial ts 525. 128 Trial ts 527. -- 52 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 53 197 Having summarised what Mr Moiler said in his police interviews, his Honour gave a direction of the type formulated by Brennan J in Liberato v The Queen,129 which drew together not only Mr Moiler's interview with police, but his accounts since the incident:130 So that records the position from Mr Moiler as to what he told Police happened. And that stands by summary of a denial of being the person who either applied the accelerant or ignited the accelerant. So if you believe Mr Moiler's account, and that's just one account where he denied being responsible in the interview in respect of the charge, you must find him not guilty. Even if you do not accept his account, but you consider that it might be true, then you must find him not guilty of the charge because you'd be left with a reasonable doubt. This is not a case where you are asked to, and you must not compare Mr Moiler's account and Kirsten's account and assess or decide which version do you consider more likely. To convict Mr Moiler of the charge, you must be satisfied beyond reasonable doubt as to the honesty, accuracy and reliability of Kirsten's evidence in respect of the charge. So it's important for you to recall at all times that the question for you to consider is whether, on all the evidence before you, the State has proven the charge against Mr Moiler beyond reasonable doubt. So if Moiler's account in the interview or across any of the other evidence in this trial has given rise to a reasonable doubt in respect of the charge, then you must find him not guilty. Even if you did not believe Mr Moiler's account in the interview, it does not follow that your verdict on the charge is guilty. Even if you did not believe his account, you put that evidence to one side. And the question remains, has the State, on the basis of the evidence that you do accept, proven Mr Moiler's guilt beyond reasonable doubt? (emphasis added) 198 The trial judge then directed the jury about the significance of any lies told by Mr Moiler during the course of his police interviews. He said:131 The State submitted that Mr Moiler told lies in his interview, and they [are] with regard to whether he had the star picket at the time that Kirsten arrived at the end of the driveway, whether he knew what the accelerant was in, how it was packaged or stored, whether he had a knowledge of a violence restraining order application, whether he had 129 Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 [11] (Brennan J). 130 Trial ts 528 - 529. 131 Trial ts 529. -- 53 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 54 knowledge that she was coming, and statements that he made with regard to his drug use in comparison with her drug use at the time. And these are all matters for you to consider carefully. But even if you were to find that Mr Moiler did tell lies, you cannot conclude that he is therefore guilty. You will need to make up your own mind about whether Mr Moiler was telling lies. But for it to be a lie, it must not only be false, but also deliberately false. The fact that Mr Moiler told a lie, if you found that he did, might be a factor in your assessment of his evidence, and that's a matter for you to consider. But you must not follow a process of reasoning to the effect that, well, if Mr Moiler was shown to have told a lie about something, that that is evidence of his guilt. It's not, and the State did not lead it on that basis. The fact that a person told a lie is not evidence that the person is guilty of a crime. (emphasis added) 199 The final paragraph of the above direction was in terms suggested in the decision of the High Court in Zoneff v The Queen.132 200 His Honour directed the jury that the State did not have to prove every aspect of a witness's testimony, but had to prove the elements of the alleged offence beyond reasonable doubt. His Honour referred to 'who was in the fleecy shirt' and directed the jury that133 if demonstrated, might support the State case as circumstances if they are proven. They might take away from the State case if they are not proven. 201 During a break in the absence of the jury, the prosecutor indicated that there were 'no issues' with the direction. His Honour indicated to counsel what directions he had yet to give, including: I'll speak about the State case again, about his conduct not being consistent with what an innocent man might, if he was trying to present himself as being an innocent person. 202 To this, defence counsel indicated, 'There are no issues'.134 203 Later in his direction, his Honour returned to the State's allegation that Mr Moiler had poured further accelerant on the bonnet of the car after Ms Moiler had exited the vehicle. His Honour summarised the State's proposition as: 135 132 Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 [23]. 133 Trial ts 530. 134 Trial ts 539 - 540. 135 Trial ts 546. -- 54 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 55 The conduct in applying fuel to the car, it was not consistent with the action of someone who had nothing to do with the fire being ignited in the first place. 204 His Honour very briefly referred to the evidence of Ms Williams and Ms Moiler again, before reminding the jury of the expert evidence of Detective Senior Constable Pearsall, summarised at [138] - [141] above. His Honour directed the jury:136 You'll place what weight you consider fit on that evidence, and whether or not the allegation that Mr Moiler did in fact light a further fire, or pour accelerant on the front of the car, supports the State case or not. It's a circumstance that the State relies upon, but it's not an element of the charge that is preferred against Mr Moiler. 205 His Honour returned to the topic of alleged lies in Mr Moiler's main interview and directed the jury that this first depended upon them listening carefully to the covertly-recorded conversation with his mother, to determine whether they agreed that Mr Moiler did say in that conversation what the State alleged he said, and whether the things said were in fact lies as asserted by the State and supported its case.137 His Honour again reminded the jury that Mr Moiler did not have to 'say, do or prove anything'.138 His Honour spent some time discussing the alleged lie in relation to whether or not Mr Moiler believed that Ms Moiler had obtained a restraining order against him, ensuring that the jury heard Mr Moiler's full account in his interview before considering whether that had in fact been a lie. 206 Finally, after spending further time discussing the State's reliance upon Ms Moiler's evidence, his Honour concluded the substance of his discussion of the case:139 So again, you'll need to carefully consider whether or not they are lies and whether they are material, insofar as affording a basis to reject Mr Moiler's account of what happened, understanding that you could not proceed to a conviction unless you first rejected Mr Moiler's account and were satisfied beyond reasonable doubt as to Kirsten Moiler's truthfulness, accuracy, and reliability, insofar as the essential elements of this case goes. That is, has the State proven that it was Mr Moiler who applied the accelerant and then ignited the accelerant? 136 Trial ts 546. 137 Trial ts 547. 138 Trial ts 547. 139 Trial ts 549. -- 55 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 56 207 At the conclusion of his Honour's charge to the jury, neither counsel raised any issue, nor sought any redirection. Should the State's concession be accepted? 208 The State's concession related only to that aspect of the prosecution case alleging that Mr Moiler poured accelerant over the bonnet of the car in order to destroy evidence. There are several steps in the process of reasoning leading to the concession. 209 First, the State reasons, it 'could have been a permissible line of reasoning' for the prosecutor to suggest that, if the jury was satisfied that Mr Moiler did pour accelerant over the bonnet of the car after Ms Moiler had been set alight and ran from the car, then he did so to destroy evidence, because he was guilty. 210 The State puts a caveat on the above, however, in that it concedes that it could only have been permissible if the prosecutor had first identified, with precision, reliance upon that evidence of post-offence conduct. The State considers that 'regrettably, that did not occur'. That conclusion appears to have played a significant role in the State's concession. 211 However, as detailed at [163] above, in his opening address the prosecutor referred to the alleged conduct of pouring fuel onto the bonnet of the car and described it as: [N]ot the conduct you would expect an innocent victim to do, destroying a car, but what you would expect the perpetrator of the incident to do, get rid of any evidence. (emphasis added). 212 The meaning of the prosecutor's reference was plain enough to any criminal lawyer and frankly, to any non-lawyer. The prosecutor was asserting that Mr Moiler had poured fuel onto a car which had already caught alight to ensure that it was destroyed and hence destroy incriminating evidence, because he was guilty. The State was relying upon the evidence as pointing towards his guilt. The issue therefore did not arise for the first time in the prosecutor's closing address. 213 Counsel for Mr Moiler, in written submissions in this court,140 accepted as much: Although it was not directly submitted by the prosecutor that this was evidence of consciousness of guilt, the words of the prosecutor's opening are consistent with that; that the appellant burned the car, 140 Mr Moiler's submissions [28]. -- 56 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 57 because he knew forensic evidence would reveal the truth about what happened. If this were accepted, this would clearly be the case. This did not ultimately play a significant role in the trial. 214 In oral submissions before this court, counsel stood by that submission. 215 If the evidence did establish that Mr Moiler poured further fuel on a fire, it was patently arguable, as the prosecutor argued, that such conduct revealed a consciousness of guilt, that is, it was conduct which Mr Moiler would not have engaged in unless he was the person responsible for introducing accelerant in the first place, and then igniting it, causing his wife's injuries. There was nothing impermissible about the use of the evidence of Mr Moiler applying accelerant to the bonnet of the car in the manner proposed by the prosecutor. 216 Throughout the cross-examination of the State's witnesses at trial, defence counsel tackled the alleged scenario in which Mr Moiler was said to have (a) had access to fuel in the type of container described (which varied between the two witnesses); (b) been observed standing near the car after the incident; and (c) poured accelerant over the bonnet of the car. 217 Ms Moiler was cross-examined141 to the effect that, in her first account to police, she had not mentioned looking back and seeing Mr Moiler pouring fuel on the car. It was put to her that it had not happened. She was also cross-examined on the basis that she had initially described the source of the fuel with which she was doused as being a Penrite container. She said she had meant that the source of the fuel in the bottle would have been from a larger Penrite container kept in the shed obtained from his work. She also said, or implied, that she had been talking about Mr Moiler pouring fuel on the bonnet, rather than on her, when she had described him holding a container of fuel in two hands and shaking it. She was tackled on that claim as well. 218 The defence at trial adduced evidence from Mr Moiler's employer, Mr Don Barfield, to the effect that Penrite was not used by that earthmoving contractor,142 rebutting the suggestion that Mr Moiler would have acquired such a container from his work. 219 There is nothing in the trial transcript to indicate that defence counsel was taken by surprise when the prosecutor made the same submission in his closing address as had been foreshadowed in his 141 Trial ts 237 - 243, 248 - 249, 253 - 254. 142 Trial ts 471 - 472. -- 57 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 58 opening address, namely that Mr Moiler had poured fuel on the fire to ensure the car and any evidence it might provide was destroyed. 220 The State, in its concession before this court, further reasons that Mr Moiler was denied the opportunity at trial to object to the use of the evidence in this manner. Defence counsel might have objected to the use to which the prosecutor plainly intended to put the evidence at any time, and took no issue with it. There is nothing to suggest that defence counsel did not appreciate the manner in which the evidence was being relied upon by the State, or would have conducted the case differently had she not. There is nothing to suggest that Mr Moiler could, or would, have given any alternative explanation for the conduct in which he plainly denied engaging. It is also speculative to suggest that he might have chosen to testify had the prosecutor opened on the allegation more clearly. The prosecutor's opening was clear, and put the defence on notice, and there were obvious reasons as to why Mr Moiler decided not to testify in a case in which he had already given a detailed account in his interview. 221 This was a very different situation from that considered in R v Howard,143 in which the unfairness that occurred during a retrial prompted the Victorian Court of Appeal to observe144 that, if the prosecution intends to rely on consciousness of guilt, it should make that known to the court at the outset of the trial or if, for some good reason, the prosecution only decides on such a course later in the trial, it should announce its intention as soon as practicable and seek the leave of the trial judge to press such an argument. 222 In that case, the victim had been murdered at 5.12 am inside her apartment, across the road from where the accused lived. He had signed a written statement early in the investigation to the effect that he had not gone out that night, but a witness placed him in the vicinity of some bins near the murdered woman's apartment about nine hours prior to her death. It was a potential lie. The same statement contained material which the defence wanted before the jury, and so the defence wished to tender the statement. The prosecution at first objected, then relented. The statement was simply tendered, with no need for the relevant officers to testify. The prosecutor made nothing in his closing address of the potential lie. The jury could not reach a verdict, and the retrial commenced soon after. 143 R v Howard [2005] VSCA 235. 144 Howard [26]. -- 58 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 59 223 Again, the statement of the accused was simply tendered by consent and, again, the relevant officers were not required to testify. It was only in his closing address in the retrial that the prosecutor submitted that the accused had lied about not going out and that the lie 'condemns him'. On appeal, the court found that a fundamental unfairness had occurred, in that the accused had not been on notice and had lost an opportunity of seeking to cross-examine the officers as to the circumstances in which his statement came to be made and the questions asked of him at that time. 224 This case is also far removed from the case of Mahmood v The State of Western Australia,145 upon which Mr Moiler relies. Mr Mahmood was convicted of the murder of his wife, based on a circumstantial case. It was his position that he had discovered her body, having played no part in her death. Defence counsel wished to tender two short portions from Mr Mahmood's video re-enactment with police a week after the death, to show how Mr Mahmood had innocently acquired his wife's blood on his hands and clothing. The defence offered to tender the complete video spanning more than two hours, but the prosecution objected to more than the few minutes of footage spoken to. In closing, the prosecutor then submitted that, when Mr Mahmood had demonstrated how he had discovered and then held his wife's body, his demeanour was 'cold-blooded and clinical and this killing was cold-blooded and clinical'.146 Defence counsel applied to reopen to tender the whole of the footage, to place other parts before the jury where Mr Mahmood had been visibly distressed. Rather than allow the defence to reopen, the trial judge sought to cure the unfairness by direction. 225 On appeal to this court, her Honour's direction to the jury was regarded as sufficient, but the High Court found that the direction was only by way of comment, suggesting an approach which the jury might take, when what had been required was a direction, warning the jury against the drawing of an inference adverse to the accused based on a short excerpt from the CCTV footage. 226 In both Howard and Mahmood, the unfairness occasioned by a prosecutor's comment occurred in the context of the defence being denied an opportunity to put further evidence before the jury. There is no suggestion in this case that the prosecutor's submissions about the alleged pouring of fuel over the bonnet were made in circumstances 145 Mahmood v The State of Western Australia [2008] HCA 1. 146 Mahmood [5]. -- 59 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 60 where the evidence before the jury was unfairly selective due to the prosecutor's own conduct. 227 It would have been preferable for the prosecutor to have raised the matter with the learned trial judge at some stage to ensure that there was no misunderstanding between counsel and the court. That did not occur. In the circumstances of this case, however, that did not lead to any unfairness to Mr Moiler. 228 There was no error in the learned trial judge elevating the alleged post-offence conduct of pouring fuel on the bonnet to a pillar of the State's circumstantial case. It was a piece of circumstantial evidence which the State relied upon as post-offence conduct showing a consciousness of guilt because, the State argued, the only reason for such an action was to destroy evidence. 229 In dealing with the allegation, his Honour did not give a direction of the type discussed by the High Court in Edwards v The Queen147 in relation to lies of an accused said to be evidence of guilt. His Honour's directions on the matter are quoted at [193], [200] and [203] - [204] above. The direction is also to be seen within the context of his Honour's directions on the drawing of inferences against Mr Moiler. 230 Edwards will be discussed in more detail below in relation to the prosecutor's submissions about what Mr Moiler said to his neighbours, but it is well established that an Edwards direction is not restricted to lies of an accused and can be tailored to other alleged post-offence conduct. 231 As this court noted in Evans v The State of Western Australia,148 the obligation of a judge to give directions about the use of evidence of post-offence conduct, such as lies, is an incident of the judge's duty to ensure a fair trial. The rationale for giving an Edwards direction is the avoidance of a perceptible risk of a miscarriage of justice if the jury were to misuse the lie, or other post-offence conduct, so as to make a finding of guilt by impermissible reasoning. 232 The risk of impermissible reasoning which may arise where evidence of post-offence conduct, such as a lie or flight, is relied on to infer guilt, is that the jury may leap from a finding that an accused lied, or fled the jurisdiction, to a conclusion that he must therefore be guilty of the offence, without considering other possible explanations for his 147 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. 148 Evans v The State of Western Australia [2020] WASCA 26; (2020) 55 WAR 310 [98]. -- 60 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 61 conduct. This risk was explained by the Supreme Court of Canada in R v White:149 It has been recognised, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt it is highly ambiguous and susceptible to jury error. … [T]he danger exists that a jury may fail to take account of alternative explanations for the accused's behaviour, and may mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation. Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act. 233 So an important aspect of a typical Edwards direction is to explain that there are many reasons why people tell lies, and a lie cannot be used as evidence of guilt unless it was told out of consciousness of guilt of the charged offence.150 Equally, in the case of evidence of flight, where there is a risk that the jury may accept the flight as evidence of guilt without considering whether there are, or may be, other explanations for the conduct,151 an Edwards-type direction, tailored to the case, is required. 234 The need for such a direction must always be considered in the light of the particular circumstances of the case, however. The perceptible risk that a jury might improperly leap from a finding that an accused engaged in particular post-offence conduct, to a finding of guilt, would only arise if there are possible alternative explanations that the jury might fail to consider. 235 In Allami v The State of Western Australia,152 the prosecution relied upon, amongst other evidence, a recorded confession in which the accused admitted having stabbed his brother, as well as evidence of the accused attempting to leave the jurisdiction and fly to Brisbane. The defence offered an innocent explanation for the attempted flight. On appeal, one of the complaints was that the trial judge had failed to give a tailored Edwards-type direction in relation to the evidence of flight and, particularly, failed to warn the jury that a person may flee for reasons other than guilt. 149 R v White [1998] SCR 72 [20], cited by Dalton JA in R v WBS [2022] QCA 26 and in R v Oth [2022] QCA 53 [33]. 150 See, for example, Evans [100]. 151 See Kalbasi v The State of Western Australia [2016] WASCA 144 [158] - [160]. 152 Allami v The State of Western Australia [2013] WASCA 230. -- 61 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 62 236 This court, in refusing leave to appeal, considered that in a case where the circumstantial evidence of flight was not such as could prove the prosecution case beyond reasonable doubt and was equivocal, relied upon by both parties, and where the jury was directed that they could not find the accused guilty unless they were satisfied that his confessional statement was true, the trial judge was not bound to give the direction contended for. Where the defence had contended that there was an innocent explanation for the attempted flight, and that the confession was falsely made for an innocent reason, Buss JA considered it would have been inappropriate for the trial judge to suggest different reasons as to why a person might attempt to flee.153 237 McLure P found that, in light of the directions given by the trial judge by which the jury was left in no doubt that the central plank of the prosecution was the confession, where the circumstantial pieces of evidence could not by themselves support an inference of guilt beyond reasonable doubt, and where the jury was directed that they could only find the accused guilty if satisfied that the confession was truthful, then there was no room for the jury to make a leap in reasoning from the flight evidence to a consciousness, or implied admission of, guilt.154 Her Honour considered that the trial judge's directions were sufficient to avert the risk which a modified Edwards direction sought to avoid, and further could not conceive of any 'vaguely sensible additional innocent explanations for the flight evidence' beyond that raised by the defence.155 238 If there are no reasonably possible alternative explanations, then an Edwards-type direction suggesting alternative explanations that are entirely implausible could only emphasise the compelling incriminating nature of the conduct, if the jury accepted it had occurred. 239 While a person might lie or flee out of panic, or to escape an unjust accusation, or for some other reason apart from a consciousness of guilt, no plausible innocent reason presents itself as to why Mr Moiler might have poured accelerant onto the bonnet of an already burning car. The obvious conclusion, if he did pour fuel on the bonnet of the car, was that he had already been responsible for introducing and igniting the accelerant which caused his wife's injuries, and wished to ensure the car was fully destroyed, and any evidence with it. Any attempt on the part of his Honour to conjure up a different reason would only have highlighted the implausibility of any alternative scenario. 153 Allami [87]. 154 Allami [12]. 155 Allami [12]. -- 62 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 63 240 Certainly, no alternative purpose for pouring fuel onto the car was suggested by defence counsel at trial. Mr Moiler's position at trial as indicated in the cross-examination was that he had not poured any accelerant onto his wife or the car, at any time. It was not suggested in cross-examination, or in closing submissions, that Mr Moiler had poured water onto the car to extinguish the fire. But there was evidence from Ms Moiler that, in her terrified state after she was injured, she had briefly mistaken a firefighter for her husband.156 There was also the evidence mentioned at [136] - [137] earlier of at least two other males approaching the burning vehicle to see if anyone was in the car. There was no information about whether any male at the scene was wearing a flannel shirt. And the expert evidence tended to rebut the State's proposition. 241 Defence counsel made detailed submissions about the lack of reliability of Ms Moiler's evidence and submitted that the evidence of the other witness who saw a man in a flannel shirt attempting, she thought, to put out the fire, was of no assistance to the prosecution. The challenge for the State was in proving that the conduct had occurred at all - that Mr Moiler had poured liquid from a container onto the bonnet and that liquid was fuel - not what inference might be drawn from such conduct if the jury was satisfied it occurred. 242 If anything, our impression of the effect of his Honour's directions referred to at [193], [200] and [203] - [204] was to somewhat deflate the prosecutor's reliance upon the evidence, in a way which certainly caused no unfairness to Mr Moiler. That impression is reflected in counsel's written submission in this appeal on behalf of Mr Moiler:157 This did not ultimately play a significant role in the trial. 243 If the jury did come to be satisfied that Mr Moiler had poured fuel on the car after his wife had fled, there was no perceptible risk that the jury might misuse that evidence in a way that required a further direction to be given. There was no unfairness to Mr Moiler and no miscarriage of justice in the way in which this particular issue was dealt with by the prosecutor or the learned trial judge. 244 Finally, the State in oral submissions raised the possibility of the jury making a finding that Mr Moiler had poured fuel on the bonnet of the car based upon Ms Williams' account and, as a result, failing to 156 Trial ts 135 - 136. 157 Mr Moiler's submissions [28]. -- 63 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 64 critically assess Ms Moiler's evidence about the entire incident generally. 245 There is no realistic risk of that having occurred. The jury was told, by counsel and by the learned trial judge, repeatedly, that the prosecution case depended upon the jury accepting the evidence of Ms Moiler as being truthful and accurate. Ms Moiler was the only witness able to give an account of Mr Moiler twice lunging towards her and squirting accelerant onto her and then, when he moved towards her a third time, hearing a flick which sounded like the flick of a lighter, before she saw flames rolling up her chest.158 There was no realistic possibility that the jury was not convinced by Ms Moiler's account of the incident itself, yet found Mr Moiler guilty on the strength of Ms William's evidence of a calm man in a flannel shirt trying to put out the fire. Defence counsel at trial made the reasonable forensic decision to not even cross-examine Ms Williams. The risk identified by the State is theoretical rather than real. 246 In those circumstances, appreciating the Director's very proper concern that trials be conducted with fairness to an accused, we decline to accept the concession of the appeal on the basis set out in the State's submissions. Insofar as the appeal relates to the allegation of pouring fuel on the bonnet of the car, Mr Moiler's argument fails. 247 We turn now to the remainder of the appeal. Particulars 1 and 2 both complain of the manner in which the prosecutor in his closing address treated the alleged lies by Mr Moiler to neighbours and police, in other words Mr Moiler's account of what occurred, in his closing address to the jury. 248 There is an overlap between particulars 1 and 2. Particular 1 complains of a change in the prosecution case between opening and closing addresses (and therefore a lack of notice to the defence) by which the prosecutor in closing relied upon Mr Moiler's post-offence conduct, denials and lies to various people as evidence indicative of a consciousness of guilt. Particular 2 complains that it was impermissible for the prosecutor to treat that evidence in that way, as opposed to evidence going to his credit only. 249 In counsel's written submissions, this related to three categories of evidence: the alleged pouring of accelerant onto the bonnet of the car, already dealt with above, Mr Moiler's interactions with his neighbours at or nearby the scene, and alleged lies in his main interview with 158 Trial ts 124, 127, 246 - 247. -- 64 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 65 police, said to be indicated by inconsistencies between that interview and his conversation with his mother. 250 The third category is now not the subject of the appeal, and the focus of what remains is the prosecutor's treatment in his closing address of Mr Moiler's conversations with his neighbours, and the learned trial judge's directions. We understand that Mr Moiler still complains of the treatment of his overall account, including his account in his main interview, as a false narrative, but the account given by Mr Moiler in his main interview was a continuation of the account first given to neighbours. 251 Particular 2 centres on the proper purpose to which such evidence could be put, and informs the other two particulars, and so that is the starting point. Particular 2 - impermissible use of post-offence conduct, denials and lies as evidence of consciousness of guilt Proof of lies as evidence of guilt and 'bootstraps' reasoning 252 Most lies of an accused do not amount to evidence of guilt, but reflect only upon the credibility of the account being given. Such lies might be lies told out of court, prior to trial, or given in court during evidence. The fact that an accused has lied during his evidence on oath may lead the jury to reject his evidence related to the lie and treat other aspects of his account with caution, and may affect the jury's assessment of other statements he made out of court.159 253 When lies are only of that kind, it will often be appropriate for a trial judge to give a direction in terms discussed in Zoneff. That direction is to the effect that the fact that an accused person has told a lie may be a factor in assessing his or her credibility, but is not evidence that the accused is guilty of the offence, and that the jury should not follow a process of reasoning that, just because a person is shown to have told a lie about something, that is evidence of guilt. 254 Such a direction was given in this case by the learned trial judge. Counsel for Mr Moiler complains, however, that it was restricted to the alleged lies proved by the inconsistencies between Mr Moiler's main interview and the covertly recorded conversation between Mr Moiler and his mother. That argument is dealt with at [359] - [365] below. 159 Evans v The State of Western Australia [2020] WASCA 26; (2020) 55 WAR 310 [63] - [71]; Law v The Queen [2020] WASCA 196 [79] - [80]. -- 65 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 66 255 Sometimes a proven lie is capable of amounting to evidence of guilt, when it is inconsistent with innocence, in other words, when it is a lie the nature of which an innocent man would not tell, such that it reveals guilt.160 Evidence which suggests a consciousness of guilt, whether that be lies, or flight, or other such evidence, is a form of circumstantial evidence: Dodd v The State of Western Australia.161 Such circumstantial evidence can be used to corroborate other evidence of guilt from a witness, where that is relevant, or as part of an overall circumstantial case.162 256 The law acknowledges, however, that a man may be innocent, and yet lie. 257 In Edwards, after explaining that a lie told in court is capable of amounting to an implied admission, the plurality continued:163 But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him'. 258 The plurality also tackled the obvious question of whether such reasoning does not involve circularity, in other words, whether it is not necessary for the jury to conclude an accused is guilty before they may be satisfied that he has told a lie out of consciousness of guilt. The plurality explained that,164 while guilt must be established beyond reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with other pieces of evidence and, for that purpose, need not be proved beyond reasonable doubt unless it 160 Edwards (208). 161 Dodd v The State of Western Australia [2014] WASCA 13 [95]. 162 Edwards (205) (Brennan J). Edwards was decided in an era in which the criminal law often required a complaint of a sexual nature to be corroborated, hence the focus on corroboration, but the principles have survived the change in the law. 163 Edwards (209). 164 Edwards (210). -- 66 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 67 forms an indispensable link in the chain of evidence necessary to prove guilt. 259 All of this rests upon a premise, however, that there is a lie to begin with. The lie must be proved. Importantly in this case, the plurality in Edwards explained:165 If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. If a witness required to be corroborated is believed in preference to the accused and this alone establishes the lie on the part of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself. That is a contradiction in terms. 260 In other words, the prosecution is not permitted to use circular reasoning by asserting a lie, the only proof of which depends upon the account of a particular witness, and then using the lie so proven to support or establish the credibility of the very witness upon whose evidence the lie was established.166 261 An accused person's denials of guilt, without more, will not be evidence of guilt. In 1935, in Edmunds v Edmunds,167 Lowe J observed: By no torturing of the statement 'I did not do the act' can you extract the evidence 'I did do the act'. 262 In Gionfriddo & Faure,168 the Victorian Court of Criminal Appeal observed: Then again a lie consisting of a bald denial of guilt made in or out of court (as is we suppose the case in every contested trial) which is only shown to be a lie by proof by the prosecution of the crime charged axiomatically is not a lie that can assist in proof of guilt. For it to do so would be for the prosecution to lift itself by its own bootstraps. 263 In Davis v The State of Western Australia,169 this court stated: Also, mere disbelief of an accused person's denial that he committed the offence cannot be used as evidence of consciousness of guilt because the lie 165 Edwards (211). 166 Edwards (210); Davis v The State of Western Australia [2007] WASCA 267 [15]. 167 Edmunds v Edmunds [1935] VLR 177, 186. 168 Gionfriddo & Faure [1989] VSC 498; (1990) 50 A Crim R 327, 332 - 333 (Crockett & O'Bryan JJ). 169 Davis v The State of Western Australia [2007] WASCA 267 [16]. -- 67 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 68 alone is insufficient to prove the positive of what was denied … The case of Zheng provides an example. (citations omitted) 264 In Law v The Queen,170 this court said: Before a lie can be evidence of guilt, the lie must be demonstrated other than by proof of guilt of the charged offence. A statement by an accused cannot be a lie evidencing guilt if the jury must assume that an accused has committed the offence for the purpose of deciding whether the statement is a lie. 265 So, before a lie can be relied upon as a piece of evidence proving guilt, rather than a lie going merely to credit, the lie must be proved by some means other than the jury simply presuming the guilt of the accused person and thereby reasoning that his denial must be a lie. 266 In Zheng v The Queen,171 the case against Mr Zheng depended upon the jury accepting the eyewitness observations of two police officers as to his behaviour in a carpark, in which he was said to have placed a package of drugs in a boot and interacted with another dealer. Mr Zheng said he was cleaning cars in the carpark, and proffered an innocent explanation for interacting with a stranger (the dealer). The trial judge left Mr Zheng's explanations to the jury as a potential lie demonstrating a consciousness of guilt based upon the proof of the police officers' observations. The court allowed the appeal on the basis that to so prove the alleged lie involved circular reasoning, because the jury was in effect invited to take into account Mr Zheng's account concerning his conduct as proof of a consciousness of guilt which could then be used to support the police officers' evidence that he did in fact act in the way they described.172 267 In Corbett v The State of Western Australia,173 the ground of appeal similarly asserted that the trial judge had erred by leaving a lie to the jury as an 'Edwards lie' when Mr Corbett had merely proffered his own innocence. In fact, he had blamed another. The case was circumstantial. Evidence from several witnesses proved that the other person Mr Corbett had implicated could not have been present to commit the crime. This court found that the lie was capable of being proved, and of amounting to a piece of evidence going to prove guilt. 170 Law v The Queen [2020] WASCA 196 [90]. 171 Zheng v The Queen (1995) 83 A Crim R 572. 172 Zheng (576 - 577). 173 Corbett v The State of Western Australia [2016] WASCA 97. -- 68 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 69 268 Finally, in Chen v The Queen,174 Mr Chen was charged with multiple Commonwealth offences of obtaining a benefit by deception by claiming significant reimbursements of goods and services tax for fictitious transactions. Mr Chen testified that he had created certain admittedly fictitious transactions simply to provide himself with a record of genuine underlying transactions, and gave detailed evidence about a convoluted offset arrangement which was said to justify his claiming the impugned reimbursements. The prosecution had to prove that the claimed arrangement was fictitious, and that the claims for reimbursement were fraudulent. The trial judge left the allegedly false evidence to the jury as an 'Edwards lie'. The appeal was fought on whether the direction had thereby employed 'bootstraps' reasoning. 269 On appeal the court found that there had been no need for the consciousness of guilt direction given by the trial judge, because the fundamental question for the jury to decide was whether the innocent explanation was a fiction, but that no miscarriage of justice had occurred. 270 R A Hulme J, with whom Davies and Bellow JJ agreed, found that the case was not one in which there was a risk of 'bootstraps' reasoning, because the whole focus of the trial and the way in which the parties had presented their respective cases was about the very issue which was the subject of the erroneous direction, namely whether the detailed innocent explanations were proved to be false by the whole of the evidence. R A Hulme J reasoned:175 An assumption of guilt and then application of it to determine the falsity of the accused's account would have been so perverse and irrational that I cannot contemplate the possibility of it having occurred. Counsel for the applicant's contention that the jury could have been satisfied that the accused lied about the BJ Multilink transactions being genuine, inferred that he lied out of consciousness of guilt, and then used that to conclude beyond reasonable doubt that the BJ Multilink transactions were not genuine is not born out as a realistic possibility for the same reason. Could the conversations with the neighbours be relied upon as lies amounting to evidence of guilt? 271 Proof that Mr Moiler was lying when he informed, firstly, his neighbours and, subsequently, police that Ms Moiler in effect set herself alight depended upon the jury accepting the account of 174 Chen v The Queen [2015] NSWCCA 122. 175 Chen [69] - [70]. -- 69 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 70 Ms Moiler, which was diametrically opposed to his own account, as being the truth. 272 Mr Moiler's account was more than a bare denial. It was an explanation that Ms Moiler had tried to douse him with accelerant, had in part achieved it, but he had blocked the accelerant by a reflexive movement of his arm when she moved, and then there was fire everywhere, burning both of them. His account could only be proved false, however, by Ms Moiler's account of the incident being accepted as truthful and accurate. 273 While there was some evidence supportive of her account, such as the medical evidence which gave qualified support, there was no evidence independent of Ms Moiler's account by which Mr Moiler's alternative version of events could be proven false, such that the telling of that false account could be relied upon as evidence of guilt in itself. Nor did the account prove itself false, by being demonstrably impossible or irrational, or so utterly implausible that it could be disregarded independently of Ms Moiler's evidence. 274 While the prosecutor made submissions about the variations in Mr Moiler's account to the neighbours and made mileage out of the suggested inconsistencies between Mr Moiler's main interview and his conversation with his mother, none of those independently proved his alternative version of how Ms Moiler received her injuries to be false. 275 There was no other eyewitness to the incident. It was the opinion of Dr Jeganathan, who testified as to Ms Moiler's injuries, that, given the pattern of injuries to her body and the relative lack of injury to her abdomen, 'the accelerant likely would have had to come from above to sustain this sort of pattern, to spare the abdomen'.176 The doctor agreed that he could not be certain that the burns resulted from the accelerant coming from above head height,177 and nor could he exclude a scenario whereby the accelerant had splashed onto her body after having first made contact with something else.178 His evidence, without Ms Moiler's account, could not prove that Mr Moiler's denials were false, but it did support her account. 276 Other evidence indicating that Mr Moiler was agitated in the lead-up to the day, evidence that he had earlier purchased fuel in a jerry can, angry text messages sent by Mr Moiler to his wife, and expert 176 Trial ts 401. 177 Trial ts 411. 178 Trial ts 411. -- 70 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 71 evidence that the fire burned most fiercely inside the car compartment, could not prove that Mr Moiler had doused Ms Moiler with accelerant and ignited it, and nor was it suggested that it could. 277 The prosecution could not rely upon Mr Moiler's several denials of responsibility to his neighbours, characterised as a lie, as a separate piece of evidence which proved that Ms Moiler's account was the truth, when an acceptance of Ms Moiler's evidence as the truth was what proved Mr Moiler's account to be false. Apart from the evidence that Mr Moiler allegedly poured fuel on the car after Ms Moiler had exited, particular 2 correctly asserts that Mr Moiler's denials and alleged lies could not be relied upon as evidence of consciousness of guilt and therefore as evidence of guilt. 278 The prosecution also could not rely upon the suggested speed with which Mr Moiler denied responsibility to his neighbours as a separate piece of evidence which proved that Ms Moiler's account was the truth, when an acceptance of Ms Moiler's evidence was what proved the speed with which he blamed his wife to be his early resort to a false narrative. 279 The prosecutor made various submissions about Mr Moiler visiting his elderly near neighbour Mrs Peppler, which involved driving around the block to reach her house. It was not in issue that Mr Moiler did go to Mrs Peppler's house. His conduct in making that detour to drop in on her, rather than simply leaving the area, did not rely upon Ms Moiler's evidence at all. But what Mr Moiler told Mrs Peppler about the incident, namely that Ms Moiler had set the car alight, could not have been left to the jury as a separate piece of evidence which proved that Ms Moiler's account was the truth, when the proof of the lie depended upon acceptance of Ms Moiler's evidence as the truth. 280 While Mr Moiler's primary position is that the prosecutor's submissions were impermissible and that the unfairness was incurable by direction, counsel also submits that, if there was an impermissible risk that the jury would employ such reasoning, then the learned trial judge should have given an Edwards direction. 281 We reject that submission. The jury could not logically have been directed to consider whether, in asserting that his wife had caused her own injuries, Mr Moiler had lied out of a consciousness of guilt because he knew the truth of the matter would implicate him and that, if the jury were so satisfied, they could then use that lie to support -- 71 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 72 Ms Moiler's credibility. To give such a direction would have been to allow the State to pull itself up by its own bootstraps. 282 It would have been an error of law for the learned trial judge to have given an Edwards direction in relation to Mr Moiler's conversations and interactions with his neighbours, which would have elevated Mr Moiler's alternative version to evidence capable of supporting the truthfulness of Ms Moiler's account. His Honour did not give such a direction. 283 It does not follow from a conclusion that the State could not rely upon Mr Moiler's account as proof of guilt, that the prosecution could not permissibly submit to the jury that Mr Moiler's denials of responsibility and attribution of blame to his wife were false. It also does not follow that the prosecutor's use of the words 'lie' and 'lies' was improper. 284 One of Mr Moiler's complaints is that the prosecutor described Mr Moiler's account given to neighbours immediately following the incident as 'lies' which, counsel submits, was 'improper' in itself, because 'lies have a very specific meaning and use in the criminal law and their potential misuse has resulted in many miscarriages of justice'.179 285 The submission that the word 'lies' has a very specific meaning and use in the criminal law overlooks the reality that the prosecutor was addressing a jury, and 'lie' is an ordinary English word which the jury would have well understood. 286 It was inevitable on the facts of the case that the prosecutor would submit to the jury that Mr Moiler had lied when he blamed his wife for causing her own injuries. 287 Ms Moiler was either telling the truth about what occurred, or her account was false. If Ms Moiler's account was true in its essential details, then, in blaming her, Mr Moiler was certainly lying. It was not reasonably possible for Mr Moiler to have been mistaken about whether he had doused his wife with accelerant and ignited it. 288 It is not for this court to attempt to conjure up some third version of events in which Mr Moiler may have squirted accelerant onto his wife but was not responsible for the ignition, or in which some 179 Mr Moiler's submissions [37]. -- 72 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 73 defence of accident may have been available.180 He gave an account to the neighbours, and to the police, in which he variously asserted that Ms Moiler had doused him with accelerant and set the car or herself alight and that her attack upon him had backfired. His case at trial as presented by defence counsel was consistent with that account. It was positively put to Ms Moiler that she attempted to put accelerant on Mr Moiler, but it ended up on her,181 and that she was the one who lit the fire.182 289 Mr Moiler's alternative version was the truth, or it was false. And if it was false, then it was a lie. There is no difference to a jury between a 'false denial' or 'false account' and a 'lie'. 290 We do not accept counsel's submission that the fact that the charge alleged a specific intent made it especially impermissible for the prosecutor to make submissions attributing lies to Mr Moiler in his closing address. The indictment contained a single charge, and the trial factually involved a single allegation. This was not a case in which a guilty conscience attached to an alleged lie or post-offence conduct might be attributable to some lesser charge, or some other behaviour, requiring a detailed direction outlining the possibilities as to how the suggested lie might impact the different scenarios.183 291 While the intent to maim, disfigure, disable or cause grievous bodily harm was something the State was required to prove, it was not put in issue during the trial that, if one person douses another with accelerant and ignites it, the only reasonable inference to be drawn is that the conduct was accompanied by such an intention. The prosecutor opened on that basis. 292 Intent was not formally admitted, and nor could it be when Mr Moiler denied having caused Ms Moiler's injuries, but nor was it put in issue. In her opening address, defence counsel told the jury that the real issue in the trial was how the fire started, and that the prosecution case would live or die on the jury's assessment of Ms Moiler. The clearest indication that the element of intent was not in issue is that no alternative verdict of causing grievous bodily harm in breach of s 297 of the Code was sought or left to the jury, though it was available at law. 180 See R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [57] - [59]. 181 Trial ts 246, 256. 182 Trial ts 256. 183 See R v Ciantar [2006] VSCA 202; (2006) 16 VR 26. -- 73 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 74 293 The prosecution case relied upon Ms Moiler's account. It stood or fell upon the jury's view of her evidence. Defence counsel told the jury that in her opening address, and it was entirely predictable that the prosecutor would submit to the jury that Mr Moiler's alternative version of events was a lie. The prosecutor did so in his opening address, and did so in his closing address. 294 Mr Moiler's account stood in the way of the prosecution case. If there was a reasonable possibility that he had told the truth in his interactions with neighbours and the police, then the proper verdict was one of 'not guilty'. The only means by which the jury could be satisfied beyond reasonable doubt of his guilt was if they both accepted Ms Moiler's account in its essential details and rejected Mr Moiler's denials and contrary version as false. 295 It was permissible for the prosecutor to submit to the jury, consistent with the State's case that Ms Moiler's account was truthful and accurate, that Mr Moiler's account was false, and that it was immediately false. It was permissible for the prosecutor to submit that there were variations in Mr Moiler's account and that he had not been truthful with the police in his main interview as demonstrated by the alleged inconsistencies. 296 It was permissible for the prosecutor to adopt a linear argument that Ms Moiler's account was the truth, Mr Moiler's account was contrived and false right from the outset, and that there were aspects of his account that suggested that it was false and should be rejected. 297 What the prosecutor needed to be careful to avoid was a circular argument to the effect that Ms Moiler's account was the truth, Mr Moiler's account was contrived and false right from the outset, and that there were aspects of his account that suggested it was false, which proved or assists to prove that it was therefore Ms Moiler who had told the truth. 298 Whether the prosecutor did in fact rely upon evidence of Mr Moiler's account as a lie proving a consciousness of guilt on his part which proved or assisted to prove the State's case, as opposed to a false account which the jury should reject, is an issue common to both particulars 1 and 2 and will be dealt with below under particular 1. -- 74 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 75 Particular 1 - did the prosecutor close his case on a different basis than opened, in relying on lies as evidence of guilt? 299 Mr Moiler complains that the prosecutor unfairly changed his position between his opening and closing addresses, by making submissions in his closing address that Mr Moiler's accounts to his neighbours immediately after the incident were lies. There are two complaints then, first, of the lack of notice and, secondly, that the prosecution impermissibly characterised Mr Moiler's account as lies proving consciousness of guilt. 300 Counsel for Mr Moiler characterises the prosecutor's opening address to the jury as having presented Mr Moiler's denials to the neighbours 'as a simple fact in the opening timeline' and 'part of the narrative or relevant only to credit' whereas, in his closing address, the prosecutor instead portrayed those same denials as 'a plot to disseminate a lie, which were denials, while the victim was incapacitated', and the actions 'of a guilty man creating a false narrative by denying the offending'.184 Counsel submits that the whole structure of the closing address was to prove that Mr Moiler lied to neighbours and police and therefore the jury should believe Ms Moiler's account. 301 The State, on the other hand, contends that the prosecutor did not invite the jury to engage in any consciousness of guilt reasoning in relation to the alleged lies to Mr Moiler's neighbours. The State says that the credibility of Mr Moiler's account was squarely placed in issue, because the case advanced by Mr Moiler at trial was not merely that he did not set his wife alight, but that she was responsible for her own injuries, because she accidentally set herself on fire while trying to injure him. 302 We do not accept the submission that, in his opening address, the prosecutor presented Mr Moiler's denials to the neighbours as a mere part of the narrative. As was detailed in the summary of the prosecutor's opening address at [158] - [164] above, the prosecutor analysed his case in terms of the State relying primarily on the evidence of Ms Moiler and being required to prove that her account of what happened is true, and that Mr Moiler's 'account of what happened is false'. 303 In his opening address, the prosecutor described Mr Moiler yelling out 'for the benefit of anyone listening' that Ms Moiler had done this to herself. The prosecutor contrasted what Mr Moiler said to the police 184 Mr Moiler's submissions [42]. -- 75 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 76 and what he said to his mother when 'he did not know the police were listening'. The prosecutor said that Mr Moiler's claims that Ms Moiler did this to him 'have no credibility whatsoever and should simply be disregarded'. After playing to the jury the CCTV with audio, the prosecutor told the jury that Mr Moiler was 'not offering her any help' but, rather, was 'trying to ensure that anybody in the neighbourhood hears him denying any responsibility for what had just happened to her'. Added to that, the prosecutor had referred to the alleged pouring of fuel on the bonnet, to get rid of any evidence. 304 An opening address is not an occasion for making submissions to the jury arguing the case. It is an occasion to open the State's case. The prosecutor's closing address was the occasion to make detailed submissions in support of the State case. 305 The prosecutor made it entirely plain in his opening address that it was the State's case that Mr Moiler, immediately after setting fire to his wife, yelled out statements to make himself seem innocent in case someone could hear him, calling out 'what happened?' and 'what did you have all that fuel for?' (based upon the CCTV with audio),185 and then, in the minutes that followed, told his neighbours in varying ways that Ms Moiler had done this to herself. 306 It was inevitable that the State would take that position. Mr Moiler could be heard on the CCTV calling for someone to call the police and asking her why she had fuel. On the State's case, that must have been contrived for him to appear shocked at what had just happened to him. He spoke to the neighbours within a very short time, providing his version of events, to the effect that his wife had tried to kill him by squirting fuel on him and setting him on fire. 307 If his version was false, and on Ms Moiler's account it must have been false, then all of that was a contrived performance, which commenced immediately. The obvious submission for the State to make - really the only submission that accorded with its case that Ms Moiler's account was the truth - was that Mr Moiler had the presence of mind to establish his false version of events as quickly as he could. 308 We reject the submission that the prosecutor altered his stance from characterising Mr Moiler's statements after the incident as mere narrative to, in his closing address, recharacterizing the statements as those of a guilty man creating a false narrative. That had always been 185 Exhibit 6. -- 76 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 77 the State's case and that could not have come as a surprise to defence counsel. If Ms Moiler's evidence was the truth, then Mr Moiler did create a false narrative. We reject the notion that the prosecutor acted unfairly and gave no notice of his approach to the evidence of Mr Moiler's alternative version of events. Certainly, in her closing address, defence counsel made detailed submissions dealing with the proposition that Mr Moiler had lied immediately following the incident and then to police. 309 Mr Moiler's accounts to his neighbours did contain admissions against interest, that is that Mr Moiler was in the immediate vicinity of the car when Ms Moiler was set alight and that accelerant was involved. Had he not participated in interviews with police, those admissions would have been more significant to the prosecution as proving at least his involvement in the incident, although of course he had also suffered burns. 310 Given that Mr Moiler did speak to police, and give a more detailed version of his account placing himself in the immediate vicinity, his interactions with the neighbours were of rather more assistance to the defence than the prosecution. Given that the prosecution intended to play Mr Moiler's main interview, however, then his accounts to the neighbours and his demeanour after the incident, described by the neighbour, Mr Shepherd, as 'visibly shaking',186 were part of his ongoing account which contained both admissions and denials, and the prosecution was required to, and did, lead the evidence.187 311 It was notable that neither the prosecutor nor the learned trial judge referred to Mr Moiler's statements to the neighbours as containing admissions against interest as to his involvement in the incident because, in the manner in which the trial was conducted, his involvement, one way or another, was a given. 312 Mr Moiler's denials and alternative account of the incident stood in the way of the prosecution case. As detailed at [165] above, defence counsel naturally relied upon those interactions as being irreconcilable with Ms Moiler's account. As the prosecutor informed the jury in his closing address, if what Mr Moiler had told his neighbours was the truth - if the jury considered it to be reasonably possible that it was the truth - then he was entitled to be found not guilty. 186 Trial ts 354. 187 Mahmood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 [39] (Hayne J). -- 77 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 78 313 It was inevitable that, in his closing address, the prosecutor would seek to persuade the jury that Ms Moiler was a truthful and accurate witness, and that Mr Moiler's denials and his account that she was responsible for her own injuries were deliberately false. They could not, realistically, have been mistakenly false, and there was no third version to be constituted by a selective melding of the two different accounts. 314 In his opening address, the prosecutor divided his case into those two parts; he informed the jury that he would seek to persuade them that Ms Moiler's evidence was the truth and reliable, and that they should reject Mr Moiler's account as unreliable, lacking in credibility and false. That, in a nutshell, was the structure of the prosecution case. In order to prove its case the prosecution had to prove Ms Moiler's account, which necessarily involved the jury also rejecting Mr Moiler's account. 315 For the most part, the prosecutor preserved that structure in his closing address. For the most part, the prosecutor was inviting the jury to reject and disregard Mr Moiler's denials and alternative account of the incident as contrived and false, and to accept Ms Moiler's account as the truth. His argument was that Mr Moiler had, immediately following the fire in the car, tried to present as an innocent man and to blame her for her injuries. If Ms Moiler's account was truthful then, in blaming her for her own injuries in the way he did, Mr Moiler's account immediately after the incident must have been contrived. 316 In oral submissions in this appeal, counsel placed emphasis on the prosecutor's submission that, prior to leaving the scene to go to his mother's house, Mr Moiler had gone out of his way to go and speak to Mrs Peppler. The complaint is that this was an invitation to use consciousness of guilt reasoning. 317 In his closing address, the prosecutor accepted that it might have been natural for Mr Moiler to give an explanation to Mr Tsang (and Mr Shepherd, who was present), but questioned the necessity of the detour to visit Mrs Peppler, and suggested that the jury might think that was really out of concern about what she had seen or heard, and a desire to put his (false) version before her. This preceded the invitation to the jury to consider Mr Moiler's conduct overall to be 'more consistent' with having been the perpetrator, 'rather than the victim he was trying to tell everyone he was'.188 188 Trial ts 486. -- 78 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 79 318 The emphasis on the detour to see Mrs Peppler did not depend upon Ms Moiler's account being accepted. The fact of the detour was uncontroversial. However, the comment was still part of the overall submission that Mr Moiler's account was false and to be rejected. That overall submission did depend upon an acceptance of Ms Moiler's account. In using the expression 'more consistent', the prosecutor was really acknowledging that the evidence could not amount to proof of guilt. 319 The prosecutor also immediately followed the submission, however, with the caution to the jury that, in order to find Mr Moiler guilty, 'it isn't enough to reject his version of events' and that 'you must be positively satisifed that he did this to her'.189 That was the lead-in to the prosecutor's submissions as to why Ms Moiler's evidence was credible and ought to be accepted. 320 What the prosecutor did not do was suggest to the jury that the visit to Mrs Peppler was a basis independent of Ms Moiler's account upon which they could find Mr Moiler to be guilty, or that it was evidence which indicated that Ms Moiler's evidence was truthful. 321 Defence counsel had invited the jury in her opening address190 to ask themselves how Mr Moiler's interactions with his neighbours after the incident could be reconciled with Ms Moiler's account. The prosecutor's counter to that obvious question in his opening and closing addresses was the submission that Mr Moiler was lying from the outset and keen to get his false version out there. 322 There was nothing improper in that approach. It followed logically from the proposition that Ms Moiler's evidence was the truth, which was the basis of the State's case. 323 There was nothing improper in the submission that Mr Moiler was quick thinking, quoted at [182] above, in calling out things which were captured by the CCTV audio 'that you might expect an innocent victim to say'. That submission merely followed logically from the State's case that Ms Moiler's account was truthful. If her account was the truth, then for Mr Moiler to call out immediately after the incident 'what happened?' and 'what did you have all that fuel for?' could only have been a contrivance. 189 Trial ts 486. 190 Trial ts 56. -- 79 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 80 324 Of course, the prosecutor's submission that these were things 'that you might expect an innocent victim to say' reminded the jury of the obvious alternative possibility, namely that Mr Moiler was an innocent victim. 325 It is also not reasonable to fear that the jury did not have regard to an alternative innocent reason as to why Mr Moiler made a short detour to visit Mrs Peppler. If it was reasonably possible that his version of events was the truth, then the explanation for detouring to see Mrs Peppler was obvious. The evidence was all before the jury: he knew her, she was elderly with poor eyesight, there had been screaming and a loud noises just outside and a car was on fire, other neighbours were out of their houses and in the street, and emergency vehicles would be arriving, and he dropped in on Mrs Peppler and assured her that she was alright. Mrs Peppler agreed that was the first thing he said to her. 326 The high point of the argument for Mr Moiler in particulars 1 and 2 arises in two passages in the prosecutor's closing address, quoted at [182] and [183] above. First, the prosecutor referred to Mr Moiler telling police that he did not wish his wife to be charged, which the prosecutor submitted was 'consistent with' Mr Moiler not wanting the police to investigate the matter too much, 'in case they got to the truth'. Then shortly after that the prosecutor, in his concluding submission, submitted that the jury should accept Ms Moiler's account, 'not just because she is a credible and believable witness' but because the other evidence, namely 'the CCTV footage, the expert medical evidence, what was going on in Peter's life' in the leadup to the incident and 'how he behaved after this happened', was 'consistent' with Ms Moiler's account and that the evidence 'all points in one direction'. 327 The broad reference to 'how he behaved after this happened' was likely to convey a reference to Mr Moiler's conduct immediately after the incident, including his interactions with his neighbours and possibly extending to his interviews with the police. If the prosecutor was only referring to the alleged pouring of fuel on the bonnet of the car after the incident, that was certainly not made clear. 328 Those two submissions implied that the prosecution was actually relying upon Mr Moiler's denials and alternative account as being consistent with and supporting Ms Moiler's account, which was then echoed in the learned trial judge's characterisation of the prosecution's case as including Mr Moiler's interactions with his neighbours. That aspect of his Honour's direction will be dealt with below. -- 80 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 81 329 Mr Moiler's alternative version of events was not consistent with Ms Moiler's account. The evidence did not all point in one direction. The various accounts given to the neighbours immediately after the incident, and then continued into Mr Moiler's interactions with the police, if accepted as the truth or considered to be at least reasonably possible, pointed in the opposite direction to the prosecution case. 330 The prosecutor had already said as much, earlier in his closing address, quoted at [170] above, when he submitted that the jury could not rely upon Mr Moiler's version of events as it was 'not credible' and 'all over the place'. 331 The prosecutor sought to persuade the jury that Mr Moiler's denials and alternative version should be rejected, and were not a reason to doubt the veracity of her account. The prosecutor's submission was that Mr Moiler was a quick-thinking liar, who immediately resorted to lying about how his wife had come to be injured. The quoted comments at [326], however, with a few ill-chosen words, blurred the distinction between what the State relied upon in support of Ms Moiler's account, and what the prosecutor sought to persuade the jury to disregard as false. The comments impliedly strayed into 'bootstraps' reasoning. 332 The closing address does need to be read as a whole, however, not on the basis of picking out a couple of unfortunate phrases and assuming that they undid the overall structure of the address. The prosecutor squarely put to the jury that, if they considered it reasonably possible that Mr Moiler was telling the truth, then they must find him not guilty. At no stage did the prosecutor suggest that Mr Moiler's allegedly fictitious account was the basis upon which the jury could convict him. It was always made plain that the State's case was dependent upon an acceptance of Ms Moiler's account. 333 Because of the lapse into what reads as an implied invitation to circular reasoning, however, it will be necessary to consider the learned trial judge's directions which are dealt with in particular 3. 334 There are a couple of points to address before turning to the last particular. 335 First, this was not a trial in which, owing to the prosecutor's conduct, the defence lost an opportunity to explore or put forward an alternative explanation for an alleged lie, consistent with innocence. Mr Moiler's account, which was consistent with his defence at trial, was squarely before the jury, and each of the neighbours, including -- 81 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 82 Mrs Peppler, testified. This was therefore unlike the situations which arose in the cases of Mahmood and Zheng. 336 Nor was this a trial in which, due to the prosecutor's approach, the jury could have overlooked an alternative explanation for an alleged lie, consistent with innocence. If Mr Moiler's account to the neighbours and, later, the police was truthful, he was not guilty, and there was no lie. The prosecution had to prove that Ms Moiler was telling the truth and that his account was false. 337 There is no reasonable risk that the jury would have failed to appreciate that, while the prosecutor sought to persuade them that Mr Moiler had lied from the outset, the alternative to be considered was whether it was reasonably possible that he had told the truth. 338 Secondly, counsel for Mr Moiler complains that the prosecutor invited the jury to make a binary choice between which evidence, Ms Moiler's evidence or Mr Moiler's account, they preferred. We reject that submission. The prosecutor's comment quoted at [319] above answers that complaint. 339 Apart from the specific passages we have just mentioned, we do not accept that the prosecutor's general approach in his closing address was impermissible, or that the prosecutor generally changed his case between opening and closing addresses. But due to the implied invitation to engage in circular reasoning, we turn now to consider the learned trial judge's directions to the jury and whether the prosecutor's comments did produce a miscarriage of justice. Particular 3 - did the learned trial judge's directions address the prejudice occasioned by the change in the State's case? 340 This particular proceeds from the premise that the prosecutor unfairly changed his case and improperly introduced conduct relied upon as consciousness of guilt. Because we have already found that the prosecutor did not change his case, and was entitled to submit that Mr Moiler had lied from the outset, much of the need for the learned trial judge to correct some prejudice to Mr Moiler did not arise. 341 His Honour's charge to the jury does, however, still require some consideration, given the prosecutor's submission referred to at [326] and the manner in which his Honour dealt with the summary of the circumstantial evidence. -- 82 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 83 342 It is unnecessary to detail all the standard directions his Honour gave as to the onus and standard of proof and other matters. 343 His Honour directed the jury that the prosecution case depended upon the jury's acceptance of Ms Moiler's evidence. His Honour also instructed the jury that they would not be able to find Mr Moiler guilty unless satisfied beyond reasonable doubt as to the truthfulness and accuracy of Ms Moiler's evidence, as she was the only witness to give direct evidence as to how the fire started. That was reiterated at the close of his Honour's directions. His Honour directed the jury that proof of the element of intent depended upon the drawing of an inference against Mr Moiler, and gave a detailed inferences direction. No complaint is made about any of those directions. 344 His Honour directed the jury that the prosecution case was based upon the direct evidence of Ms Moiler, but that the State also relied in part upon circumstances to prove its case. 345 The learned judge listed the pieces of circumstantial evidence relied upon by the State in support of its case. Those pieces of evidence listed by his Honour, and detailed at [193] above, were said by his Honour to include Mr Moiler's interactions with his neighbours, said by the State to be 'getting his version of the story out there' and 'very soon after the event trying to craft the narrative'. 346 It was unfortunate that his Honour referred to the State's submissions about Mr Moiler's interaction with his neighbours as a circumstance which supported its case, including that item in the list alongside Mr Moiler's purchase of fuel in a jerry can the day before, the messages he had sent to Ms Moiler, and his agitation in the leadup to the incident, as demonstrated by his treatment of her personal belongings. Presumably his Honour's list was influenced by the prosecutor's submissions quoted at [182] and [183] above, and [326]. 347 The interactions with the neighbours should had been left off that list. The distinction should have been made between circumstantial evidence the State relied upon in support of Ms Moiler's account, and the reasons why the State invited the jury to reject Mr Moiler's account as a contrived and inconsistent lie from the outset. It may be a fine point of distinction on the facts of this particular case but, with respect to the learned trial judge, it should have been made. 348 Despite that, we are satisfied that there was no appreciable risk that the jury would have failed to take into account, in assessing the prosecution case against Mr Moiler, that the alternative scenario they -- 83 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 84 must consider as a possible explanation for Mr Moiler telling his neighbours that his wife had started the fire was that he had been telling the truth, and Ms Moiler had caused her own injuries. The presumption of innocence, the learned trial judge's directions concerning the onus of proof, and plain common sense, required them to do so. 349 We do not think it reasonable to suspect that the jury presumed Mr Moiler's guilt because he said he was innocent, presumed the falsity of his account and then used that presumption of guilt to determine that Ms Moiler's account was the truth. 350 To think otherwise seems to us to give the jury no credit. The jury was told on multiple occasions that the prosecution case depended upon the jury accepting Ms Moiler's evidence and rejecting Mr Moiler's account. That was what the whole trial was about. Ms Moiler's credibility was attacked, and Mr Moiler's alternative version was before the jury through multiple witnesses and his recorded interviews. 351 Critically, after the direction about circumstances relied upon by the State, his Honour emphasised where the onus of proof lay and then gave a comprehensive direction set out at [197] above in accordance with Liberato. 352 That included the direction that, if Mr Moiler's account raised a reasonable doubt, then he must be found not guilty and that, even if the jury did not believe that account, it did not follow that the verdict would be guilty. They were told that, if they did not believe his account, then they were to put it to one side. His Honour emphasised that, to find Mr Moiler guilty, the jury must be satisfied beyond reasonable doubt as to the truthfulness and accuracy of Ms Moiler's account. 353 The Liberato direction could have left the jury in no doubt that, if Mr Moiler's account 'might be true' then they must find him not guilty. In that context, his Honour referred to Mr Moiler having denied in his main interview that he had been the person who had either 'applied or ignited' the accelerant. His Honour reminded the jury that the police interview was 'just one account where he had denied being responsible' because, of course, Mr Moiler had, from the outset, denied being responsible, to the neighbours with whom he spoke and to the police from the outset. 354 The Liberato direction left no scope for the jury to find Mr Moiler guilty on the basis that he had denied being guilty, or had talked to his neighbours and given something of his version to them, or had made a -- 84 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 85 detour to Mrs Peppler's house before he drove to his mother's house. The direction made it plain that there was no means by which the jury could find him guilty, even if they rejected his version of events and put it to one side, without finding that Ms Moiler's account was the truth. 355 Any potential for confusion that could have arisen from the prosecutor's submissions quoted at [182] and [183] above, and [326], or from his Honour's inclusion of Mr Moiler's conduct in speaking to his neighbours as part of the circumstantial evidence was cured by the Liberato direction. 356 As discussed at [280] - [282], Mr Moiler's submission that the learned trial judge ought to have given an Edwards direction concerning his interactions with his neighbours is misconceived. For his Honour to have instructed the jury that there are many reasons, other than guilt, as to why an accused person might lie by telling people an alternative version of events, would likely convey to the jury that the prosecution's submission that Mr Moiler was lying had more strength than it had,191 and more work to do in the State's case than it did. 357 Any direction to the effect that the jury should not employ reasoning that involved a conclusion that Mr Moiler had lied in his interactions with the neighbours would have been in error, and only confused the jury. The ultimate decision they had to make - whether they accepted Ms Moiler's account was truthful and reliable and rejected Mr Moiler's account - involved satisfaction that Mr Moiler's account was a lie. The Liberato direction given was the appropriate direction to give. An Edwards direction about Mr Moiler's version of events or his conduct in stating his version to his neighbours had no part to play on the facts of this trial. 358 The learned trial judge then directed the jury about the alleged inconsistencies between what Mr Moiler said to police in his main interview and what he had said to his mother, demonstrating, the State had argued, that Mr Moiler had lied in his main interview about those inconsistent matters. His Honour proceeded to give the Zoneff direction about lies set out at [198]. 359 There is now no complaint about the manner in which the alleged inconsistencies were dealt with by his Honour, but counsel for Mr Moiler does complain that the Zoneff direction was restricted to the specific alleged lies in the main interview and did not therefore apply to the alleged lies to the neighbours. 191 Zoneff [20]. -- 85 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 86 360 The Zoneff direction was appropriately directed at those alleged lies identified by the prosecutor in the main interview based upon suggested internal inconsistencies in Mr Moiler's account. The prosecutor's submission in that regard did not rely upon an acceptance of Ms Moiler's evidence. Further, the prosecution did not need to prove any of the suggested lies in the main interview based upon inconsistencies to prove its case. 361 Those alleged lies arising from internal inconsistences were most appropriately dealt with by way of the Zoneff direction, to ensure that the jury did not leap to a conclusion of guilt from a potential lie about an aspect of Mr Moiler's account relating to the use of a star picket, methylamphetamine use, a restraining order, and his description of what vessel he claimed Ms Moiler had the accelerant in. 362 The overall submission that Mr Moiler had, from the outset, given a false account was best dealt with by way of directions concerning the onus of proof and the Liberato direction. The Liberato direction directed the jury to put Mr Moiler's account to one side if they rejected it, consistent with the prosecutor's submissions to that effect in his opening and closing addresses. 363 Following the first part of the Zoneff direction which was aimed at the suggested inconsistencies in the main interview, his Honour then directed the jury in more general terms that they must not follow a process of reasoning to the effect that, if Mr Moiler was shown to have told a lie 'about something', that that amounted to evidence of guilt, and further directed that 'the fact that a person told a lie is not evidence that the person is guilty of a crime'.192 364 If the jury understood that direction to be limited to the alleged inconsistencies between the main interview and the conversation between Mr Moiler and his mother, it did not undermine the Liberato direction. If they understood his Honour to be talking about any lies, generally, it still did not undermine the Liberato direction, which left no scope for the jury to employ impermissible reasoning. 365 Nothing in his Honour's final directions detailed at [205] - [206] above, which concluded with the direction that the jury could not proceed to conviction unless they rejected Mr Moiler's account and were satisfied beyond reasonable doubt as to Ms Moiler's truthfulness and reliability, had the effect of diminishing the Liberato direction. 192 Trial ts 529. -- 86 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 87 366 It is noteworthy that, following his Honour's directions, defence counsel raised no issue and sought no further directions. Defence counsel cannot have thought that the jury were likely to be in any confusion about their task which, at heart, turned upon the credibility of the State's main witness and whether there was any reasonable doubt about the truthfulness and accuracy of her account. That is consistent with, and reinforces, our own view of the conduct of the trial. 367 Despite the brief implied invitation to circular reasoning by the prosecutor, and despite the inclusion by the learned trial judge of Mr Moiler's conduct after the incident as part of the circumstantial evidence relied upon by the State, we are satisfied that any possible confusion which might have resulted was entirely cured by his Honour's other directions, including the Liberato direction which followed. Any error or irregularity constituted by the prosecutor's submission and the trial judge's inclusion of the submission in summarising the prosecution case could not have realistically affected the jury's reasoning to a verdict of guilty. Any such error or irregularity was immaterial and does not constitute a miscarriage of justice or wrong decision on a question of law in these circumstances.193 Particular 3 is not made out. It follows from the reasoning above that the single ground of appeal is not made out. 368 While leave to appeal is given, the appeal against conviction is dismissed. We turn now to the State's appeal against sentence. State's appeal against sentence 369 The State appeals against the sentence of 11 years' imprisonment imposed upon Mr Moiler on two grounds. 370 The first ground alleges that the learned trial judge erred in fact in finding that the offence was not within the worst category of offences of its kind. The second ground asserts that the sentence imposed was manifestly inadequate. The second ground is not dependent upon the success of the first ground. 371 A finding by a judge at first instance that offending falls, or does not fall, within the worst category, does not challenge a finding of fact, or assert an error of law, or challenge an order of the court. Such a finding is a characterisation by a judge as to where the offending falls on a scale of seriousness and, in that sense, is no different to any other 193 Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 [10] - [11]; MDP v The King [2025] HCA 24; (2025) 99 ALJR 969 [3]. -- 87 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 88 such finding. A question was raised by the bench in the hearing of this matter as to whether such an express error, if it be an error, amounts to an independent ground of appeal, as opposed to a particular of a ground which challenges the sentence imposed. 372 In the decision of this court in Coulter v The State of Western Australia,194 this court dealt with such a ground with no such reservation expressed and, upon the error being made out and the State not arguing that the error was immaterial, proceeded to resentence. 373 In this matter, nothing turns on whether the first ground is a proper ground of appeal in itself, or more appropriately to be regarded as a particular of the second ground. It is convenient to deal with the first ground separately because, as will be seen directly below, a finding that offending falls into the worst category does, or should, have consequences in terms of the likely length of sentence to be imposed. 374 If this case falls into the worst category, that supports the State's contention in its second ground that the sentence of 11 years' imprisonment was manifestly inadequate. If the offending is not in the worst category, however, it does not follow that the sentence imposed was not manifestly inadequate. Legal principles as to 'worst category' cases 375 In RGT v The State of Western Australia,195 this court summarised the principles in relation to the 'worst category' of cases, as follows: The expression 'worst case' is often used synonymously with the expression 'worst category'. The expression 'worst category' has a particular legal signification. What is meant by an offence falling within the 'worst category' has been explained in numerous cases. Most recently, the question was discussed by the High Court in R v Kilic.196 In the joint judgment of Bell, Gageler, Keane, Nettle and Gordon JJ, the Court said that the expression refers to an instance of an offence which is so grave that it warrants the imposition of the maximum prescribed penalty for the offence. Both the nature of the crime and the circumstances of the offender must be considered in determining whether an offence falls within the 'worst category'. Once it is concluded that an offence falls within the category, it is beside the point that it may be possible to conceive of an even worse instance of the offence. 194 Coulter v The State of Western Australia [2019] WASCA 215 [42]. 195 RGT v The State of Western Australia [2017] WASCA 120 [49] - [54]. 196 R v Kilic [2016] HCA 48; (2016) 259 CLR 256. -- 88 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 89 Their Honours warned against the use of the expression 'worst category'. Relevantly, their Honours said that where it was used to describe a case that does not warrant the imposition of the maximum penalty it was apt to cause to confusion and was likely to lead to error. As we understand it, the likely error referred to is the overstatement of the seriousness of the offence, which in turn may lead to the imposition of a sentence greater than the relevant circumstances require. Where an offence, although grave, is not so grave as to warrant the imposition of the maximum prescribed penalty, a sentencing judge must consider where the facts of the offence and the offender lie on the spectrum that extends from the least serious instances of the offence to the worst category properly so called. Their Honours said that in those cases where it is relevant to do so, the sentencing judge should, rather than use the expression 'worst category', state in full whether [the] offence is or is not so grave as to warrant the maximum penalty.197 In The State of Western Australia v BLM,198 the majority held, having regard to the provisions of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), that where a case falls within the worst category, a sentencing judge may impose the maximum penalty or something approaching it, notwithstanding that the sentence is outside any previously established sentencing range. (some footnotes omitted) 376 A 'worst category' case is, by definition, 'relatively rare'.199 377 As was emphasised by this court in Coulter200 both the nature of the crime and the circumstances of the offender are to be considered in determining whether the case is of the worst type. 378 The offender in Coulter asserted that the sentencing judge had erred in characterising the offending, namely very serious sexual offending against a child, as being in the worst category. In upholding that ground, this court included the following factors in the assesment of that issue: the offender's early plea of guilty, remorse, generally good antecedents and an absence of any finding that he posed an elevated risk of reoffending, as well as the absence of certain features which would, if present, have made the offending behaviour more serious.201 197 Kilic [20]. 198 The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414. 199 BLM [45] (Wheeler & Pullin JA). 200 Coulter [43]. 201 Coulter [57]. -- 89 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 90 379 This court also observed that, although each case must be decided on its own facts, a sentencing judge may legitimately refer to comparable cases to decide whether the case at hand is properly described as being in the 'worst category', although comparable cases will not determine the issue.202 Legal principles where sentence is said to be manifestly inadequate 380 The legal principles applicable where a sentence is said to be manifestly inadequate are well established and have been summarised in cases such as Kabambi v The State of Western Australia203 and do not need to be exhaustively restated here. It suffices to say that the court will not intervene unless the sentence imposed is so unreasonable or plainly unjust that this court must conclude that a substantial wrong has occurred. This court will have regard to the maximum applicable penalty, the standards of sentencing customarily observed for that type of offence, the place the offending at hand occupies on the scale of seriousness for that type of offence, and the offender's personal circumstances. 381 The sentences customarily imposed do not establish the upper or lower limits of the sentencing range available in the exercise of the sentencing discretion. McLure P observed in Schaper v The State of Western Australia:204 The range of sentences customarily imposed for an offence does not establish the range of the sound sentencing discretion; were it otherwise, sentences outside the customary range could not be imposed regardless of the particular circumstances of the case or because of broader considerations including changes in the prevalence of an offence. The range of sentences customarily imposed is dynamic not static. It can expand at its lower and upper ranges to reflect differences in relevant sentencing considerations. (citations omitted) 382 A comparison to comparable cases is only one of the means by which this court may assess whether a sentence reveals implied error. Findings made by the learned trial judge for sentencing purposes 383 The learned trial judge made the following findings as to the circumstances of the offending. Passages in parenthesis are our comments, or additions to fill in some of the basic facts not mentioned in the findings, which were not in issue. 202 Coulter [45]. 203 Kabambi v The State of Western Australia [2019] WASCA 44. 204 Schaper v The State of Western Australia [2010] WASCA 178 [8]. -- 90 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 91 384 The Moilers had been in a relationship for about 16 years and have children together. The relationship had been marred by long-term mutual drug use. Mr Moiler has a deeply entrenched substance abuse problem. Both had made efforts over time to stop their drug use, and both had experienced missteps along the way. 385 There was also violence within the relationship. There were incidents of violence by Mr Moiler towards Ms Moiler during the relationship, though not to the full extent described in her evidence. (Those incidents which were proved were not particularised by his Honour.) Ms Moiler was fearful of her husband towards the end of the relationship. It is also likely that, on occasion, Ms Moiler was violent towards Mr Moiler. That mutual violence was a consequence of a longstanding unhappy relationship involving mutual drug use. 386 In the lead-up to the incident, both had accepted that their relationship was finally over and they agreed to separate. (Ms Moiler had moved out of the marital home into a chalet). There was mutual mental and emotional turmoil at that time, as both tried to navigate their way out of their relationship. Both were making sincere efforts to separate amicably, however both had used methylamphetamine in the days prior to the incident. During that period both were prone to acting irrationally and dangerously, not merely because of their drug use but also because of their heightened emotions in trying to grapple with the difficulty of separation where children are involved. 387 In the days leading up to the incident, Mr Moiler was angry with Ms Moiler and had sent increasingly angry SMS messages to her. The precise cause of the anger cannot be determined. He had been contacting her and urging her to pick up her possessions from their house. 388 On the day prior to the incident, their young daughter had received a scratch or bite to her face from a dog owned by a drug-dealing friend of Mr Moiler. Mr Moiler may have been angry at Ms Moiler out of a perception that she was unresponsive to his messages about their daughter's injury, but he may have been angry for other reasons. 389 Ms Moiler had been acting irrationally during the same period of time. Following the injury to her daughter the day before the incident, she attended the property of the drug-dealing friend that night and smashed a car headlight and a window on his bobcat. 390 On 2 June 2023, the day of the incident, Mr Moiler had been bundling Ms Moiler's goods into his car with a view to dropping them -- 91 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 92 off to her. The disrespectful and rough way in which that was done, given the obvious sentimental value of some of the items, demonstrated Mr Moiler's anger towards Ms Moiler at that time. 391 During the early afternoon of 2 June 2023, Ms Moiler applied for a family violence restraining order against Mr Moiler, but her application was not able to be heard by the court that day. 392 By that evening, Ms Moiler had cause to be apprehensive about how Mr Moiler would treat her, given prior acts of violence directed at her within the course of the relationship and the angry messages from Mr Moiler. 393 On the evening of 2 June 2023, around dusk, Ms Moiler drove to the matrimonial home, parking her car at the bottom of the driveway. Ms Moiler did not drive to the property that night in order to invite Mr Moiler to go with her to do 'burnouts' at a gravel pit, as she claimed. She went there that night with a view to trying to resolve the relationship amicably. In doing so, she rendered herself entirely vulnerable to Mr Moiler, should he choose to offend against her. At that time, she was fearful for her safety, and apprehensive about how Mr Moiler would present, but Mr Moiler also felt a degree of fearfulness towards her. 394 By the time she arrived, Mr Moiler had been made aware (through Lippy) that Ms Moiler had sought some sort of protective order, whether he understood it to be a family violence restraining order or some kind of weekend protection order. That knowledge was not proven to have increased his anger, however, or to have motivated the offending. 395 Mr Moiler approached the car while Ms Moiler was still seated in the car and an argument soon developed between the two of them, such that neighbours heard raised voices, consistent with the audio to the CCTV footage205 which captured raised voices. 396 Things between them went wrong very quickly, and the offence occurred as the result of a spontaneous decision by Mr Moiler. 397 Ms Moiler's account of how the incident occurred is accurate. When she was still sitting in the car, Mr Moiler said to her, 'Are you good?', to which she replied, 'Yeah'. Mr Moiler then asked, 'Are you strapped in?' and then squirted her twice with an accelerant (in a bottle) 205 Exhibit 6. -- 92 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 93 and then ignited her. Mr Moiler had decided to squirt Ms Moiler from above with accelerant while she was seated in the car, and then ignite it for no reason at all. (No finding was made as to why Mr Moiler was holding accelerant prior to the act. There was evidence that both of them tended to use accelerant in a bottle for mundane purposes around their semi-rural property.) 398 Ms Moiler testified that she had heard the flick of a cigarette lighter, but that detail may or may not have been accurate. Whether she heard that noise or not, Mr Moiler had clearly deliberately ignited her by some means, most likely using a lighter. Ms Moiler then immediately saw flames rolling up her chest towards her face. She put her head down and, as she said, 'What the fuck, Pete?', shut her eyes very tightly, ripped the seatbelt from over her shoulder and opened her car door, exited the car and peeled off her outer clothes, down to her underwear. She was able to escape the seatbelt quickly because she habitually did not do it up properly. (Neighbours heard a woman screaming in distress.) 399 Mr Moiler probably did open the car door for Ms Moiler in order for her to escape the car, which is mitigatory. (He received burn injuries to his hands.) No finding could be made, however, as to whether Mr Moiler had, as he claimed, assisted her to remove her outer clothes. 400 Once Ms Moiler was out of the car, there came a point where she could no longer see any flames on her. She could see sheets of skin falling from her left arm, as though it was 'cooked lasagna'. She fled the immediate area to take shelter and accept assistance from nearby neighbours. (She ran to a nearby property which she knew had a creek, and a neighbour kept her doused with water from a hose until an ambulance arrived.) 401 Ms Moiler heard explosions (from the burning car, as did others), but could not see well in the dark. She could see that there were other people around, and was absolutely terrified. She thought Mr Moiler was going to kill her. 402 Mr Moiler did not thereafter attempt to assist Ms Moiler in any way. (He got into his car and was driving when he stopped and spoke to two neighbours who were outside at the scene, Mr Tsang and Mr Shepherd, before driving around the block and visiting another neighbour, Mrs Peppler. He then left the area and drove to his mother's house). -- 93 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 94 403 Mr Moiler's failure to follow and render assistance to Ms Moiler made no difference to the nature of her injuries, and he was aware that Ms Moiler was being supported by others following the incident. It would have been unhelpful to Ms Moiler for him to have approached her at that time because she was, with cause, terrified of him and believed he intended to kill her. 404 Notwithstanding that, Mr Moiler's decision to leave her was callous. He was motivated not by a desire to assist her but, rather, to start immediately creating his own narrative to the effect that she was responsible for the fire and that he had been the victim of conduct on her part. 405 Mr Moiler waited about 20 minutes to telephone the police (by which time he was enroute to his mother's house). 406 Ms Moiler arrived at the hospital in an induced coma, and spent six weeks in hospital. As a result of the incident, she suffered very significant injuries, amounting to burns to 38% of her body, which were both life-threatening and likely to cause permanent injury to health. In the absence of treatment, which included scrubbing and skin grafts, there would likely have been a loss of limb, namely her arms, or death. 407 The injuries appeared in be in a 'dripping' fashion as a result of Ms Moiler having been seated at the time. She suffered significant burns to her head. Those burns were described as largely partial and full-thickness burns, across her forehead, nose, cheeks, around her ears and the back of her scalp. Her eyelids were burnt, she had partial-thickness burns to her lips, and superficial burns to her chin. (Shutting her eyes tightly had saved her eyes from injury). 408 She had burns to the front of her neck and down both shoulders to the top of her mid-breast, with the severity of those injuries being consistent with partial to mid-partial thickness, and some full-thickness burns to her shoulders. 409 She suffered burns to the right-hand flank of her abdomen, consistent with partial-thickness burns save for a small area of full-thickness burns, and burns to her back, involving most of her upper and mid-back. The burns to her upper back were full-thickness burns. The burns to her mid-back and lower mid-back were partial-thickness burns. -- 94 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 95 410 She suffered severe burns, mostly full-thickness, to the entire length and circumference of both arms. 411 (The learned sentencing judge was provided with a series of photographs indicating Ms Moiler's treatment at separate periods in her long-term treatment.) Ms Moiler underwent significant and repeated surgery to most areas of her body, particularly to her arms. The injuries were agonising and disfiguring, and required significant and long-term treatment. 412 Ms Moiler's body has been permanently altered. The injuries have limited her use of her hands; she now has webbing in between her fingers and scars on her wrists and fingers, such that she can neither straighten them, nor grip, which impacts day-to-day activities. Her fingers are permanently bent, she has trouble applying make-up and moisturiser, which is needed to prevent her skin from drying out, and she has difficulty using a mobile telephone, using a mug or a bowl, doing her hair, and bringing in shopping bags. The process of regrowing nails and nail beds was painful. She has scarring to her arms, including wrists, elbow and hands, and to her shoulders and back, both ears, her eyes and cheeks. 413 Ms Moiler had to wear a compression suit for 23 out of 24 hours of the day up until close to trial, which was in September 2025. At the time of sentencing, she chose to continue wearing a compression suit because it was more comfortable for her, given the hardness of her skin. Ms Moiler has been advised that it will take 18 months to two years for the scars to stop moving and to mature. Further surgery will be required. 414 The pain at the time of the incident was unbearable and, since the incident, has continued to affect her every day, shaping how she thinks, feels, and interacts with the world around her. Ms Moiler is saddened everyday by her looks. The impact of the offending upon her will be lifelong. The injuries will be visible to her and anyone else for the rest of her life. It is almost inevitable that Ms Moiler will suffer psychological injury and emotional trauma. 415 The incident occurred as a result of a deliberate act in which Mr Moiler intended to cause grievous bodily harm to Ms Moiler. It is obvious that applying 'two doses' of accelerant and igniting them will cause 'catastrophic and serious' injuries.206 While the offence was not 206 ts 612. -- 95 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 96 pre-planned or well thought out and occurred on the spur of the moment, there was some calculation or assessment that took place. 416 Mr Moiler may not have intended the disfiguring effect of those particular injuries to Ms Moiler's appearance. (His Honour did not expand on that observation.) 417 It is unlikely that, after Ms Moiler had escaped the car and fled, Mr Moiler dowsed the bonnet of the car with accelerant.207 418 While Mr Moiler was not honest with the police generally in his account to them, it is unclear whether he lied to them about the involvement of a star picket in the incident. No matter where precisely the star picket was prior to the offending, it does not appear to be relevant to the offending from a sentencing point of view.208 It is unnecessary to detail the differing accounts on that issue. Mitigatory matters, personal circumstances and sentencing comments 419 His Honour had the benefit of written submissions on sentencing filed on behalf of Mr Moiler. In terms of personal circumstances, Mr Moiler was 45 years old when sentenced and 42 at the time of the offending. He was born and raised in Western Australia, and reported a positive childhood. Tragedy struck the family, however, when his 17-year-old younger brother was killed in a motor vehicle accident, following which Mr Moiler commenced methylamphetamine use. He graduated high school and has mostly been employed, working as a machine operator in earthmoving or as a farmhand/labourer. He has no diagnosed mental health conditions and no issues with his physical health. 420 Prior to this offending, Mr Moiler had incurred a nine-page criminal record, consisting largely of offences relating to illicit drugs, unauthorised possession of firearms and going armed, property-type offending and traffic offending. He had no prior convictions for violent offending. He has previously been imprisoned for several months in 2019 after breaching a suspended term of imprisonment. 421 His Honour acknowledged that Mr Moiler's criminal record did not increase the seriousness of the offending, but simply represented the lack of a mitigatory factor. 207 ts 613 - 614. 208 ts 618. -- 96 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 97 422 His Honour was unable to be satisfied that Mr Moiler represents a low risk of future offending, but, likewise, was not satisfied that anything in Mr Moiler's background called for an increase in sentence to impress upon Mr Moiler the need for specific deterrence. 423 While Mr Moiler did not have the benefit of prior good character, his Honour found209 that Mr Moiler's lack of previous history of violent offending does distinguish [Mr Moiler] from a recent case in which there was a heightened need to punish the offender and to further protect the community from him. 424 His Honour acknowledged that the fact that Mr Moiler had pleaded not guilty and taken the matter to trial did not increase the seriousness of the offending. 425 His Honour observed that, while the offence was not pre-planned, it was the kind of offence which was very easily undertaken, because all that was needed was an accelerant and a lighter to cause enormous injury. 426 His Honour sentenced Mr Moiler on the basis that he intended to cause injuries amounting to grievous bodily harm, and that it was obvious that very significant injuries would result from what he did, but not on the basis that he intended the specific and disfiguring injuries which resulted. The absence of that additional intent is not mitigatory but, rather, the absence of a further intent additional to the intent to do grievous bodily harm. 427 His Honour considered that the fact that Mr and Ms Moiler were in a family relationship with each other made the conduct more serious, and found that the incident occurred in the context of an obvious imbalance of power, where Ms Moiler was vulnerable. 428 Within that context, his Honour found that general deterrence was especially important in a case of intentional wrongdoing, such as this, where the offending reflects domestic violence, which is a major concern in this country. His Honour noted that sentences for violent assaults within the context of domestic relationships have increased. 429 As mentioned earlier, his Honour was satisfied that Mr Moiler probably did open the car door for Ms Moiler in order for her to escape the car, and considered that to be mitigatory. 209 Sentencing ts 620. -- 97 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 98 430 His Honour found that Mr Moiler was not remorseful and lacked insight into the seriousness of his offending. His Honour commented that Mr Moiler had been glib in his police interview, possibly as a reflection of Mr Moiler's personality style, or the impact of long-term drug use. His Honour found that Mr Moiler's comment to police to the effect that he did not wish Ms Moiler to be charged (for supposedly trying to set him alight) because she had got her own 'comeuppance', to be both untrue and showing a lack of insight and regard for her.210 431 His Honour took into account the way in which the trial was conducted which, as a result of concessions made by Mr Moiler, was reduced in length of the trial from the scheduled 15 days to 7 days, and certain witnesses were spared the need to testify.211 432 His Honour found that the offending was exceptionally serious, but not within the worst category of offending. That finding is the subject of the first ground of appeal on sentence. 433 His Honour took into account that, in receiving an inevitable term of immediate imprisonment, Mr Moiler would be removed from his children's lives for a considerable period of time. The three children were aged between 6 and 15 years at sentencing. His Honour commented that there was nothing unusual about that in the circumstances, but still took it into account in a general sense.212 Similarly, his Honour took into account that Mr Moiler had been in custody at Hakea Prison on remand, where conditions were unsatisfactory.213 Ground 1 - disposition 434 The first ground of appeal asserts an express error of fact on the part of the learned sentencing judge in finding that the offence was not within the worst category of offences of its kind. 435 In sentencing for offences of causing grievous bodily harm, with or without intent, the relevant factors include the nature of the harm caused to the victim, the type of act which caused the injury and the circumstances of the offending, including the context in which it occurred.214 210 ts 615. 211 ts 616. 212 ts 616. 213 ts 616. 214 Trompler v The State of Western Australia [2008] WASCA 265 [9] - [11]. -- 98 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 99 436 Even within the very broad variety of scenarios in which one person can intentionally cause a serious injury to another, which range from spontaneous and momentary violence to premeditated and prolonged torture, dousing a person with accelerant and then setting them alight stands out as shocking violence. The excruciating and often enduring pain and disfigurement caused by serious burns, coupled with the potential for fatality (irrespective of the offender's intent) which will very often be present with the use of accelerant and fire, increases the seriousness of such offending. When the victim is the mother of the perpetrator's children, the violence is even more unthinkable. 437 That is not to say that violent offenders cannot mete out other appalling types of violence. In finding that this offending was not within the worst category, the learned sentencing judge was finding that the combination of the circumstances of the offence and the offender were not so grave as to warrant the imposition of the maximum, or close to the maximum penalty. Consistency in sentencing requires that even obviously serious offending must still be assessed as to where it properly sits on the spectrum from least serious to worst category. 438 The State referred this court to the single case of Dimitrovska v The State of Western Australia,215 a case in which the offender doused the victim with accelerant in circumstances in which she caught fire, on the basis that there is little to distinguish between the two cases. Dimitrovska involved an offender who was sentenced on the basis that the case fell into the worst category. 439 Submissions on behalf of Mr Moiler sought to draw distinctions between the two cases, as well as another 'worst category' case of Eriha v The State of Western Australia.216 Counsel also referred the court to the cases of Zhang v The State of Western Australia,217 and Dunbar v The State of Western Australia,218 which are not worst category cases, both of which counsel submits are more akin to this offending in terms of seriousness. We have also had regard to Kilic, referred to at [375] above, in which the offending involved the use of accelerant and setting the victim alight. That sentencing appeal was from another jurisdiction, but the decision of the High Court contains relevant statements of principle. 215 Dimitrovska v The State of Western Australia [2015] WASCA 162. 216 Eriha v The State of Western Australia [2011] WASCA 167. 217 Zhang v The State of Western Australia [2013] WASCA 121. 218 Dunbar v The State of Western Australia [2020] WASCA 90. -- 99 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 100 440 The range of cases which may be of assistance to the court in determining whether this offending ought to have been characterised as falling within the worst category will likely be broader than the usual comparison of 'comparable' cases for a ground that focuses on the length of sentence imposed. The comparators may legitimately include cases that are plainly more, or plainly less, serious than the current case. While the State has cited a single case in support of this ground, if the most serious comparator put before the court was in the worst category offending and is not plainly more serious that the current matter, that would point compellingly to this case as being deserving of the description of worst category. 441 Given the range of cases cited, it is convenient to also consider at the same time the range of sentences customarily imposed for offending of this kind and the sentences imposed in the cases cited, as that also casts light on the overall identification of worst category cases and cases which are regarded as very serious, yet fall short of that description. 442 The case of Dimitrovska, relied upon by the State, was conceded by the defence at first instance and on appeal to fall within the worst category of causing grievous bodily harm with intent. Despite that, the offender appealed against her sentence of 17 years' imprisonment on the basis that it was manifestly excessive. The appeal was dismissed. The facts were as follows. 443 The offender had separated from her husband and suspected that he was having an affair with the victim. The trial judge made a finding that her suspicion was entirely unfounded (although it is unlikely to have made a difference if her suspicions were justified). In January and February 2012, the offender was trying to find her husband and telephoned the victim multiple times, voicing threats including, 'You're dead, bitch', 'I'll ruin your pretty little face', 'We're watching you', 'My brother will kill you', and 'You're lying to me'. On one occasion, when the victim was facing court charges of her own, the offender told her that she hoped she would rot in her gaol cell and be raped, beaten, and murdered. 444 In late January 2012, the offender telephoned the victim to tell her she had reunited with her husband, to which the victim advised that she did not care. The victim then sent the offender a text message wishing the offender a good life, and requesting that the offender not contact her again. The offender continued to contact the victim and, in early -- 100 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 101 February 2012, made further telephone calls looking for her husband and using abusive language. 445 Two days prior to the offence, a man telephoned the victim at the offender's request. He told the victim she was being watched, again referred to the victim's 'pretty little face' being ruined, and told her, 'We're going to kill you'. That same day, the offender barged into the victim's unit and searched for her husband, who was not there. Still later that day, the offender telephoned the victim calling her a liar and said, 'You're dead, bitch'. 446 Two days later, after the offender had smoked amphetamines all night, she and a male companion arrived at the victim's apartment at dawn. They gained entry to her unit through a balcony and, once inside, the offender again accused the victim of sleeping with her husband. The victim took from the offender a methylamphetamine burner which she was holding, and which was alight. She told the offender to leave the unit. At that point, the offender said, 'Just tell me where he is or I'm going to set you on fire'. 447 The offender then grabbed a bottle of methylated spirits and doused the victim with the contents while she was still holding the burner, which caused the victim to catch fire immediately. We infer from the findings about the lack of premeditation that the offender had not brought the accelerant with her. The offender then laughed at the victim, and she and her companion left the unit without assisting the victim in any way or alerting anyone to the victim's plight. Several days later, the offender learned that one of the persons who had gone with her to the unit had been arrested. The offender was apprehended at the airport, attempting to flee the country. 448 The impact of the injuries on the victim was horrendous. She suffered significant burns to 60% of her body, being either deep, partial or full-thickness burns, which also threatened her airway. A tube had to be inserted in her airway to avoid it swelling and preventing breathing. She suffered circumferential burns to both arms requiring emergency surgery. She endured unimaginable pain, both immediately and in the aftermath of the incident. Had she not received medical treatment, she would have died from airway obstruction, overwhelming infection, or shock. She was told she would have to wear pressure garments for a period of at least two years. She had limited arm movement, required daily personal care and physiotherapy, and had undergone numerous operations and skin grafts to the entire top half of her body. She was disfigured by extensive scarring. -- 101 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 102 449 The conviction was entered after trial and so there was no discount available for any plea of guilty. The expressed remorse was found to be very limited and was, in any event, after trial. The offender had no prior convictions for violence, but did have a prior history of drug offending. Though still in her 20s at the time of the offending, the offender was outside of the range at which youth would be seen as mitigatory. 450 She was sentenced on the basis that there had only been brief premeditation involved in dousing the victim with methylated spirits. Both the trial judge and this court noted, however, that the significance of that was somewhat diminished by the repeated threats made to the victim by the offender over the months, weeks, and days preceding the attack, which suggested that the offender may have contemplated some form of attack upon the victim, even if not necessarily contemplating its precise form. A spontaneous act achieved what had been threatened, and the offender laughed and left the victim helpless. 451 Martin CJ, with whom McLure P and Hall J agreed as to the ground relating to an alleged manifest excess, observed that:219 In summary, in this case which falls within the worst category of cases of causing grievous bodily harm with intent, there is very little that can be said to justify any reduction in sentence below the maximum prescribed by law. Perhaps the only matters of any significance are the limited period of premeditation to which I have referred, and the lack of any prior conviction for violence. Those matters in combination justify some small reduction from the maximum penalty available - in the order of the reduction given by the trial judge when he imposed the sentence of 17 years imprisonment. 452 If the offender in Dimitrovska had been found to have attended the victim's home that morning for the purpose of inflicting serious and disfiguring injury upon the victim, she would likely have received the maximum 20-year penalty. 453 The Victorian case of Kilic, mentioned at [375] above, also involved the use of accelerant and fire to deliberately cause serious injuries. The offender was 22 years old and in a relationship with the 23-year-old victim, who was 12 weeks pregnant with his child at the time of the incident. The relationship was dysfunctional and controlled by mutual methylamphetamine use. In the days leading up to the offence, the victim had moved out of their home due to the offender's 219 Dimitrovska [141]. -- 102 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 103 paranoid and controlling behaviour. The offender suspected his partner of infidelity. 454 The victim was on her way to meet with the offender to discuss their relationship when she saw two mutual friends of the couple stopped on the road, fuelling up their car using a jerry can, and she joined them in their car instead. Unfortunately, the jerry can, which still contained some fuel, was placed on the back seat of their car. 455 The three arrived at the offender's home in the one car. As one of the friends was about to exit his vehicle, the offender charged at him with a samurai sword which he thrust through the car window but, at the last moment, aimed the sword at the steering wheel. He then yelled abuse at the victim who was still in the car, got into the car with her, saw the fuel and then poured it over her. He got out of the car, leaving her wet and crying, then got back into the car, pulling her back in when she tried to escape. He told her, 'You wanna make my heart burn, now you can burn bitch', and held a cigarette lighter to her chest. She was immediately engulfed in flames. The friends extinguished the flames and the offender briefly assisted. He also dialled 000 and threw his phone to one of his friends, before entering his house to put ice on his own burnt hands and then, having been told to leave, did. 456 The victim suffered 'horrendous' burns to 20% of her body, consisting of partial and full-thickness burns. She was treated in the intensive care unit and placed in an induced coma for five days on a ventilator. There was no doubt that she would have died without emergency treatment. There was extensive treatment required and she suffered complications, leaving her with compromised health. She was scarred to large areas of her body, and her future quality of life was, and would remain, diminished. Due to her compromised health, she terminated her pregnancy. 457 The offending was not planned. It was spontaneous and opportunistic and the offender was youthful, remorseful and had pleaded guilty. He was not of prior good character, having a number of prior convictions for minor offences and weapons convictions, but no prior convictions for violence. 458 The trial judge imposed a term of 14 years' imprisonment for the offence of intentionally causing serious injury as part of a total effective term of 15 years. On appeal by the offender, the Victorian Court of Appeal considered the case to fall into the worst category, but found that the disparity between the sentence imposed and other cases -- 103 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 104 involving intentional infliction of serious injury where the victims had sustained lifelong, major physical or mental disabilities, indicated a breach of the underlying sentencing principle of equal justice. The Court of Appeal substituted a total effective sentence of 10 years and 6 months' imprisonment for the offence as part of a total effective sentence of 10 years and 10 months' imprisonment. 459 On a Crown appeal to the High Court, it was agreed by the Crown that the offending, although a 'grave instance of the offence' was 'not so grave as to warrant the imposition of the maximum prescribed penalty'220 and so the sentencing judge was bound to consider where the offence lay on the spectrum of offending. The High Court considered that the Court of Appeal had used the description 'worst category' not in the sense of a case deserving of the maximum penalty, which the High Court regarded as the proper meaning of the descriptor221 but, rather, to mean a case towards the upper end of the range for seriousness.222 It was in that context that the High Court made the observations referred to at [375] above. 460 The High Court upheld the appeal and set aside the orders of the Court of Appeal, restoring the original sentence. The High Court accepted the Crown's submissions that there was a 'disconnect' between the reduction of the original sentence and the Court of Appeal's acceptance that the offending was so horrific and productive of chronic, serious injury as to place it in the upper end of the range of seriousness, as well as the Court of Appeal's recognition of the impropriety of 'attempting to draw subtle distinctions between the seriousness of injuries which, in each case, place the offences at the upper end of the range of seriousness'.223 The High Court also observed that it 'surpasses understanding that a man, even one as young as twenty-two years of age, could set alight the mother of his unborn child'.224 461 Counsel for Mr Moiler points to the case of Eriha as an example of 'worst category' offending, and submits that the offending was 'plainly more serious' than the current case. The total effective sentence imposed in Eriha, and upheld on appeal by this court, was 11 years' imprisonment, the same sentence imposed upon Mr Moiler. The individual sentence imposed for the offence of grievous bodily harm with intent in Eriha was 9 years' imprisonment. 220 Kilic [19]. 221 Kilic [18] and [20]. 222 Kilic [42]. 223 Kilic [32] - [33]. 224 Kilic [36]. -- 104 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 105 462 The offending in Eriha was without doubt prolonged and cruel. It is unnecessary to detail all the facts. It suffices to say that the offender and two accomplices kidnapped a slightly-built 17-year-old in the late afternoon and repeatedly violently assaulted him until dusk, including suspending him upside down for a time while kicking him to the head, chest and stomach, carving a word into his bare chest and then bashing his hands with a claw hammer, causing permanent injury, the latter being the offence of causing grievous bodily harm with intent. They also struck his legs with a tyre lever before abandoning him in the bush, barely able to walk and without food, water, or shelter. Fortunately, he was discovered the next morning. 463 There are three points to be made about the case. Firstly, the offender in Eriha entered an early plea of guilty. He was sentenced prior to the introduction of s 9AA of the Sentencing Act and the discount for the plea was therefore not specified at sentence. In Dimitrovska, Martin CJ observed of the sentence in Eriha that, given practices prevalent at the time of the sentencing, it was reasonable to infer that the discount allowed for the early plea was 30%, with the result that the total effective term of 11 years could be equated to a term of 15.7 years, absent the discount.225 On that basis, the individual term of 9 years for the grievous bodily harm with intent could be equated to 13 years, absent the discount. 464 There was further mitigation. The offender in Eriha was youthful and remorseful, and had taken steps towards his own rehabilitation. It is always difficult to reverse engineer a sentence when there are other mitigatory matters but, overall, those other factors suggest that the starting point for the individual term of 9 years' imprisonment may well have been in excess of 14 years. 465 Secondly, there is reason to conclude that the description of 'worst category' offending in Eriha was aimed at the facts of the offending, rather than the holistic consideration of both the facts and personal circumstances of the offender, emphasised by this court in Coulter eight years later. 466 The maximum penalty for the offence of grievous bodily harm with intent at that time was, as it is now, 20 years' imprisonment. On appeal, counsel for the offender conceded that the offence of grievous bodily harm with intent was indeed in the worst category, yet argued that a sentence of 9 years was manifestly excessive when consideration 225 Dimitrovska [147] (Martin CJ, with whom McLure P & Hall J agreed on that ground of appeal). -- 105 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 106 was given to the offender's very early pleas of guilty and his youth. The appeal was dismissed on the basis that the learned sentencing judge had given express and due weight to the offender's plea of guilty, his age and other personal circumstances, concluding:226 This can be readily seen by the fact that although the case was in the worst category, ultimately the appellant received a sentence which was less than one half of the statutory maximum. The sentence imposed upon the appellant was undoubtedly severe. However, having regard to all the circumstances of the case, it reflected the exercise of a sound sentencing discretion. 467 As the expression 'worst category' refers to an instance of an offence which is so grave that it warrants the imposition of the maximum prescribed penalty, it is difficult to see how an argument could even be advanced that a sentence for such an offence could be manifestly excessive when it represents less than half of the maximum penalty. The approach of this court in Coulter would suggest that, despite the appalling facts of the offending in Eriha, those facts, in combination with the significant mitigatory factors, produced a case which was not so grave that it warranted the imposition of the maximum prescribed penalty, which is why the offender in Eriha received an individual term less than half the prescribed maximum penalty. 468 Finally, Eriha was decided 15 years ago. Sentences are firming up for this type of violent offending. It was also not a domestic violence-type offence. Sentences for domestic violence offences are also firming up.227 469 We also reject the submission that the offending in Eriha was 'plainly more serious' than this case. The offence of grievous bodily harm in that case consisted of hitting the victim's hands with a hammer. That is not plainly more serious than using accelerant and setting a victim alight. 470 The prolonged and calculated nature in which all five of the offences in Eriha were carried out, coupled with the callousness of abandoning the victim to his fate overnight in the bush, were very serious features absent in this case. But there was an obvious and immediate risk of more serious, even fatal, injury to Ms Moiler from 226 Eriha [63] - [64]. 227 The State of Western Australia v Chungarai [2021] WASCA 147 [57]. -- 106 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 107 the moment Mr Moiler combined accelerant and fire, irrespective of his lesser intention. 471 Further, acknowledging that the victim in Eriha was also left with permanent injury, Ms Moiler was left with horrendous long-term physical injuries and permanent scarring. The current matter is also heightened in severity by the fact that Mr Moiler and Ms Moiler were in a family relationship. Finally, the mitigation available to the offender in Eriha was considerably higher than any mitigation available to Mr Moiler in this case. 472 In the 2013 decision of Zhang, which counsel for Mr Moiler points to as representing offending akin to this offending in terms of seriousness, the offender aimed and deliberately drove his car at the victim, at speed, so as to hit him and cause serious injury. The victim suffered a closed head injury and multiple fractures, including to his spine, ribs, knee, occipital bone and nasal bones. He had been employed at a high level, and was very active and fit, and his injuries left him facing unemployment and a possible need for future disability support. The offender was convicted after trial. 473 The motivation behind the offending was that the victim, the offender's supervisor, had written a negative performance report about him, recommending termination of his employment and, by effectively ridding himself of the victim, the offender hoped to keep his job. At the time of the offending, he was experiencing an overwhelming sense of loss of control over his life. He suffered from an acute mental impairment at the time which 'modestly' impaired his judgment, but did not impair his ability to appreciate the wrongfulness of his conduct. He also likely suffered from post-traumatic stress disorder from events in his childhood and younger years. 474 The case was not regarded as falling into the worst category, and was seen as falling outside the range of sentences customarily imposed. Mazza JA (with whom McLure P & Buss JA agreed) reviewed a number of sentencing cases before concluding that, in serious cases of offences of causing grievous bodily harm with intent, the range of sentences customarily imposed after trial (as at 2013) had not exceeded 8 years' imprisonment. The original sentence imposed after trial of 10 years and 6 months' imprisonment was substituted with a sentence of 8 years and 6 months' imprisonment. 475 In the rather more recent case of Dunbar, which was decided in 2020, also relied upon by counsel for Mr Moiler, the sentencing judge -- 107 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 108 at first instance had characterised the offending as being exceptionally serious, but falling short of being in the worst category. The offender was sentenced on his plea of guilty to a term of 10 years' imprisonment for an offence of grievous bodily harm with intent, and then an additional 6 months for a subsequent assault occasioning bodily harm. He had received a discount of 20% for his early plea of guilty. There were also other matters taken into account in mitigation. 476 The facts were that the offender had made an unwelcome advance towards a female backpacker, and the male victim had intervened and explained to the offender why she was not interested in him. The offender left, but returned a few minutes later with a concealed knife, sat behind the victim and then, without warning, stabbed the victim a number of times in his neck and back, inflicting very serious and life-threatening injuries upon him before the knife broke. The victim's windpipe was almost separated from the cartilege by which it was attached to the neck, but, very fortunately, the major arteries and veins in the neck were not damaged, and the victim received swift medical treatment. 477 The injuries were both life-endangering and likely to cause permanent injury to health. The victim spent many weeks in hospital and was left with altered facial features. At the time of sentencing, he was still suffering on a daily basis from pain, voice impairment and other issues, and, of course, was psychologically affected as well. 478 The offender's moral culpability was reduced by his mental health issues. He was described by this court as having experienced 'profound childhood deprivation', and there was psychiatric evidence indicating a link between that deprivation and his resultant personality disorders and drug addiction, such that the court had regard to the principles in Bugmy v The Queen.228 However, Dunbar was also a case where the offender's personal circumstances including his mental health issues, while mitigatory, also had the counterveiling effect of increasing the risk he represented to the community. 479 While leave to appeal was granted, this court rejected an appeal by the offender arguing that the sentence was manifestly excessive. This court was not called upon to analyse the features which saved the case from being in the worst category, as that was not required by the finding that it was not. It seems likely though that it was the plea of 228 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [42] - [44]. -- 108 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 109 guilty and circumstances personal to the offender which kept the case out of the worst category. 480 This court found the sentence was not manifestly excessive, having regard to the exceptionally serious circumstances of the offending, the effect of the offending on the victim, the need for general deterrence, and, importantly, the need to protect the community. 481 It is difficult to reverse engineer the starting point for the sentence but, if the starting point was 13 years' imprisonment then, apart from the 20% discount for the plea of guilty, the discount for any other matter was only in the order of a few months whereas, if the starting point for that sentence was 14 years, then the end result of 10 years would represent a 20% discount for the sentence and a further reduction of a little over a year for other matters. On either calculation, the sentence well exceeded the range identified seven years earlier in the case of Zhang. 482 This court in Dunbar had regard to a number of comparable cases, including the decisions in Dimitrovska and Eriha discussed above, as well as Zhang and The State of Western Australia v Darroch.229 The court also referred to the observations of Martin CJ (with whom Buss and Mazza JJA agreed) in the 2015 decision in Oxenham v The State of Western Australia,230 indicating that previous determined cases suggested a range of between 4 years and 6 months' and 8 years' imprisonment for offences of this type, and that the range of sentences customarily imposed after trial in cases that were not in the worst category had not, as at 2013 when Zhang had been decided, exceeded 8 years' imprisonment. Since the decisions of Oxenham and Zhang, however, this court has allowed an appeal by the State against sentence in Darroch and substituted a sentence of 10 years' imprisonment for the original 5 years, following a 25% discount for an early plea. It has also upheld the sentence in Dunbar, which was significantly higher than the range of sentences observed in Zhang. 483 Darroch concerned an offence of committing an act, with intent to harm, which endangered or was likely to endanger the victim's life, health or safety, contrary to s 304(2) of the Code, which, like an offence of grievous bodily harm with intent, carries a maximum penalty of 20 years' imprisonment. The offender attacked the victim in a service station bathroom, striking him repeatedly to the head with a hammer, causing catastrophic and permanent injuries to the victim. It 229 The State of Western Australia v Darroch [2018] WASCA 114. 230 Oxenham v The State of Western Australia [2015] WASCA 30 [37]. -- 109 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 110 was not suggested, however, that the case fell into the worst category, despite the terrible nature of the injuries suffered. 484 The offender pleaded guilty at the first reasonable opportunity, for which he received a discount of 25% and was remorseful. He also suffered from a form of schizoaffective disorder, the management of which was complicated by illicit drug use and unreliable compliance with his medication regimen. He had a prior record of violent offending. Though he had received a depot injection two days before the incident, it was unlikely to have had beneficial effect due to his previous recent non-compliance. There was a causal connection between his mental illness and the offending, reducing his moral culpability, but he also represented a high risk of future violence if he did not manage his mental illness. The substituted sentence of 10 years' imprisonment after allowing a discount of 25% for an early plea, and where there was remorse, may have represented a starting point around or in excess of the 14-year mark. 485 It is evident that the range of sentences customarily imposed has expanded to encompass higher sentences for offending which, viewed holistically, does not fall into the worst category case but is very serious. This court in Dunbar observed that:231 The range of sentences customarily imposed for s 294 offences is broad. Recently, there has been a firming up of sentences, particularly in relation to those cases which are at the upper end of the spectrum of seriousness, although below the worst case category. As we stated earlier, the range of sentences customarily imposed does not fix the quantitative boundaries within which future sentences must be imposed. Indeed, this factor is but one of the factors which must be considered in deciding whether a sentence is manifestly excessive. 486 We turn now to the consideration of whether his Honour erred in not characterising this case as falling into the worst category, as the State contends. 487 Irrespective of Mr Moiler's intentions (and he was not charged with attempted murder), it is readily apparent that Ms Moiler could have suffered worse, even fatal, injuries. The potential for catastrophic harm in such offending is high. Very fortunately, she was able to escape from the car and undress and the flames subsided in time, but not before she suffered agonising pain and horrendous injuries. The means chosen by Mr Moiler to inflict the injuries made it all too predictable that Ms Moiler would receive horrendous injuries. 231 Dunbar [86]. -- 110 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 111 488 Further, Mr Moiler and Ms Moiler had been in a domestic relationship for many years, and this offending occurred within the context of their mutual decision to end their relationship. Unlike an offence of grievous bodily harm simpliciter, the Code does not provide for an offence of aggravated grievous bodily harm with intent, which already carries a maximum penalty of 20 years' imprisonment. Nevertheless, the fact that the two were in a relationship together makes the offending more serious. 489 The courts recognise the profound impact of offences of domestic violence upon the victim's self-confidence, independence, resilience, and enjoyment of life. The frequency of such offending requires particular emphasis to be placed on denunciation and discouragement of such conduct by deterrent sentences. 490 In The State of Western Australia v Chungarai,232 this court observed:233 This court has emphasised the importance of general deterrence and recognised the firming up, in recent years, of sentences for offences committed in the course of domestic violence. As was observed in Duncan v The State of Western Australia:234 'There is no doubt that the incidence of violent assaults by men on vulnerable victims (mostly women) who are in domestic relationships with them, means that general deterrence is an important sentencing consideration in offences of this kind. In Bropho v Hall,235 Mitchell J (as his Honour was then) discussed the impact of the aggravating factor of an assault committed in the context of a domestic relationship. His Honour rightly said:236 "An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to 232 The State of Western Australia v Chungarai [2021] WASCA 147. 233 Chungarai [57]. 234 Duncan v The State of Western Australia [2018] WASCA 154 [40]. 235 Bropho v Hall [2015] WASCA 50. 236 Bropho v Hall [16]. -- 111 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 112 take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner."' 491 The offending was a very serious breach of the trust which at least ought to be present between a couple. The fact that that trust was already damaged between them by past violence and anger does not reduce the aggravating impact of the fact that they had been in a long-term relationship with children, and the offending occurred within the context of the breakdown of the relationship. 492 The State likens the offending to that in the case of Dimitrovska in terms of seriousness. It should be remembered that the ability of the court to imagine a worse example of similar offending does not prevent a case from being characterised as being in the worst category. If Dimitrovska is that worse example and there are yet more serious cases which can be imagined, it does not necessarily follow that this case is not also in the worst category. 493 In many ways, the two cases are close in seriousness. Both involved a deliberate act of setting another person on fire. The impact on the victims in both cases was horrendous. The victim in Dimitrovska was tragically disfigured. Ms Moiler is less so, but the injuries to her arms were shocking and there is additional disfigurement. We are also mindful of the psychological impact of disfigurement to any degree. 494 While the nature of the injuries suffered is a relevant factor, we do not consider it appropriate to draw a distinction between the precise extent of injury suffered, when both victims suffered greatly. The difference in the precise level of injury may have been a mere matter of chance in terms of what the victim was wearing, what position she was in, how she wore her hair, the precise amount of accelerant and other variables. 495 The quantity of accelerant used is a small point of distinction in so far as it may bear on the intention of the offender. The offender in Dimitrovska grabbed a bottle of methylated spirits and doused the victim with it. Mr Moiler had the accelerant in a pump-action bottle and squirted the victim with it twice, before moving in for a third time -- 112 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 113 and setting Ms Moiler alight. The facts suggest that Mr Moiler applied the lesser quantity of accelerant. 496 In neither Dimitrovska, nor the current case, was the offending sustained over a lengthy period of time as it was in Eriha, amounting to torture. The act causing the injury was short, but the impact devastating. 497 The fact that both the offender in Dimitrovska and Mr Moiler were methylamphetamine users, which may lend some explanation as to how a person's moral compass could be so compromised that she or he could be capable of such an act of violence, is not an excuse and is not mitigatory. 498 Both Mr Moiler and the offender in Dimitrovska were convicted after trial, and so neither had the mitigation of a plea of guilty. In fact, neither had the benefit of compelling mitigation. 499 Unlike the offenders in Dunbar, Darroch and Kilic, neither suffered from a mental illness which could be said to have reduced his or her moral culpability. Neither displayed real insight or heartfelt remorse. Neither had taken significant rehabilitative steps prior to sentencing. Both had a criminal record but no record for past violence, though the learned sentencing judge in this case found that Mr Moiler had been violent on occasion in his relationship. 500 Mr Moiler was cooperative in the trial process, making admissions and shortening the trial. The same was not said of the offender in Dimitrovska. 501 The case of Dimitrovska was not an incident of domestic violence. In the current case, by contrast, the victim was in a long-term relationship with Mr Moiler and is the mother of his children, with all of the ongoing emotional implications of that for mother and children, now and into the future. That is a serious additional feature. 502 As against that, the current case, extremely serious though it is, lacks something of the sheer malevolence of the offending in Dimitrovska. While not premeditated until shortly before the act, the offending in Dimitrovska was the horrendous conclusion to two months of abusing and threatening the victim in terms which suggested the offender was either considering harming the victim, including disfiguring her, or at the very least wanted the victim to fear that she would be killed, or harmed in a disfiguring way. That background context was highly threatening and sinister, and must have impacted on -- 113 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 114 the victim's sense of security for some weeks prior to the offending. The offender also entered the victim's home and brought a male companion with her. 503 By contrast, while the learned trial judge found that Mr Moiler was angry at Ms Moiler, his Honour also found that the offending in this case was spontaneous and that, at the time Ms Moiler attended the property, Mr Moiler also had some cause to be fearful. It is unclear on what precise basis his Honour made the finding. His Honour made no express finding as to why it was that Mr Moiler was carrying accelerant with him when he approached the car. There was no account from Mr Moiler to explain the reason, given that he denied having any accelerant. 504 To put those findings into context, however, it was the prosecution case that Mr Moiler 'was apprehensive for his own safety and took with him a star picket and, we say also a handheld bottle of fuel'.237 The star picket was not seen as relevant to the offending. 505 The tone of Mr Moiler's numerous text messages to Ms Moiler over the period 22 May to 2 June 2023238 was not threatening but, rather, one of bitterness over her decision to leave the marital home, anger over her failure to answer her phone or respond to messages, and frustration that, having made the decision to leave, Ms Moiler had not then gathered and taken all the items she would need and was returning to the home frequently. 506 His Honour did not find an intention to cause the specific disfiguring injuries which resulted, though there was an intention to cause injuries amounting to grievous bodily harm. His Honour also found that Mr Moiler probably did open the car door for his wife (after she had caught alight) to enable her to get out of the car. Mr Moiler also yelled out, 'Someone call the police!' shortly after the incident, which was captured on the audio of a nearby CCTV system,239 drawing attention of anyone nearby. The victim's screaming could be heard anyway, however, and his Honour did find that Mr Moiler was shaping the narrative from the start to favour himself. His Honour made no finding that Mr Moiler mocked Ms Moiler after the incident. 507 Again, to put those findings into context, the prosecutor told the jury in closing that 'the prosecution isn't suggesting that Peter Moiler 237 Prosecutor's closing address, ts 492. 238 Exhibits 5, 28. 239 Exhibit 6. -- 114 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 115 walked down to the car with a fixed premeditated intention to set his wife on fire'.240 It was the prosecution case that he was already angry, and had been agitated and frenetic in the lead-up to the incident, and then they argued at the car and, 'in a moment of sudden agitation' Mr Moiler had squirted her with accelerant and then set her alight. The prosecutor also told the jury, 'Maybe even Peter Moiler was shocked by the gap between the idea of threatening someone with accelerant and the reality, the results of actually doing it'.241 508 His Honour made no finding that Mr Moiler assisted Ms Moiler thereafter, and found that it was callous of the respondent to leave the scene, although his departure had no impact on the extent to which Ms Moiler was injured, given that she was being assisted by others to Mr Moiler's knowledge. Mr Moiler also did not attempt to abscond. 509 Those features stand in some contrast to the offender's actions in Dimitrovska. There was a persistence and a real malevolence in the offending in Dimitrovska which is lacking in the current case, despite the horrendous impact on Ms Moiler. 510 Based on the learned trial judge's findings, which were consistent for the most part with the way in which the State presented its case, the offending in this case arose as a spontaneous, agitated lashing out against Ms Moiler during a verbal argument, in the context of a tense separation where the ability of both parties to sensibly navigate the separation was compromised by chronic use of methylamphetamine. Given the finding that Mr Moiler may not have intended the specific disfiguring injuries which occurred (which was not explained, but may have been influenced by the likely limited amount of accelerant used) and the finding that he then likely opened the door for her to get out of the car, we consider the criminality in the offending act fell below that in Dimitrovska. The personal circumstances of each offender in the two cases were not significantly different. 511 Despite the added seriousness in the current case of the fact that the person who caused Ms Moiler's life-changing injuries was her partner of many years, which shrinks the gap between the two cases, we consider that the case of Dimitrovska represents more serious offending than the current case. 512 While that is not determinative of whether the current case falls into the worst category, we are also not persuaded, for the same reasons 240 Prosecutor's closing address, ts 492. 241 Prosecutor's closing address, ts 492. -- 115 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 116 given above, that the offending is so grave that it warrants the imposition of the maximum prescribed penalty or close to the maximum prescribed penalty. Rather, it falls into the upper level of seriousness and just below the worst category. That is determinative. 513 We are not persuaded that the learned trial erred in failing to find that this case fell into the worst category. Ground 1 is not made out. Ground 2 - disposition 514 The cases discussed in relation to ground 1 indicate a firming up of sentences customarily imposed for very serious offences of causing grievous bodily harm with intent. That is particularly so when one considers that the sentences imposed in most of the cases above followed substantial discounts for a plea of guilty, and mental health issues were also often involved to reduce moral culpability. Sentences for offending within the context of domestic violence are also firming up. 515 It is unnecessary to repeat the obviously serious nature of the offending and the impact upon the victim. There is a clear need to emphasise general deterrence of such violence, and general deterrence of domestic violence, particularly given the extreme nature of the violence and the predictably horrendous consequences for the victim. 516 While we are not persuaded that this case falls within the worst category of offending, it very much approaches it. We are persuaded that a sentence of 11 years' imprisonment, in circumstances in which there was no discount for a plea of guilty and very little by way of mitigation, failed to reflect the seriousness of the offending and is so unreasonable or plainly unjust that this court must conclude that a substantial wrong has occurred. Ground 2 is accordingly established. Residual discretion 517 This court has a residual discretion under s 31(4)(a) of the Criminal Appeals Act not to interfere with a primary judge's exercise of the sentencing discretion, in the context of a State appeal, notwithstanding that appellable error has been established. A respondent to a State appeal against sentence does not bear an onus to establish that the residual discretion should be exercised in his or her favour. Rather, it is incumbent on the State to negative any reason why -- 116 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 117 the residual discretion of this court not to interfere should be exercised.242 518 In the present case, counsel for Mr Moiler did not contend that this court should dismiss the State's appeal in the exercise of its residual discretion if a ground of appeal was established. In our view, intervention in the present case is necessary to maintain adequate standards of sentencing. Appellable error has been clearly established, and the public interest in maintaining appropriate sentencing standards for extremely serious offending of the kind that occurred in the present case counts strongly against the exercise of the residual discretion in Mr Moiler's favour. Resentencing 519 As the State's appeal against sentence succeeds, Mr Moiler must be resentenced. 520 After taking into account the maximum penalty of 20 years' imprisonment, the facts of the offending as found by the learned sentencing judge and what modest mitigation there is, we sentence Mr Moiler to a term of 15 years' imprisonment, with parole eligibility. The sentence is to take effect from 3 June 2023 to take account of time in custody. The lifetime family violence restraining order was not the subject of this appeal and remains in place. Orders 521 For the above reasons, the following orders should be made in each appeal: CACR 115 of 2025: Mr Moiler's conviction appeal 1. The appellant's application for an extension of time within which to appeal is granted. 2. Leave to appeal is granted on the sole ground of appeal. 3. The appeal is dismissed. CACR 114 of 2025: The State's appeal against sentence 1. The appeal is allowed. 242 CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34]. -- 117 of 118 -- [2026] WASCA 63 MITCHELL & SWEENEY JJA Page 118 2. The sentence of 11 years' imprisonment imposed on District Court of Western Australia indictment PE 594 of 2024 is set aside and a sentence of 15 years' imprisonment is substituted. 3. The substituted sentence is taken to have taken effect on 3 June 2023. 4. The respondent is eligible for parole. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. NM Associate to the Hon Justice Sweeney 11 MAY 2026 -- 118 of 118 --