NICOLETTI -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 115

[2026] WASCA 115 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NICOLETTI -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 115 CORAM : THOMSON P MITCHELL JA SWEENEY JA HEARD : 19 AUGUST 2026 DELIVERED : 19 AUGUST 2026 PUBLISHED : 19 AUGUST 2026 FILE NO/S : CACR 122 of 2025 BETWEEN : ALBERTO NICOLETTI Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : MASSEY DCJ File Number : IND 1017 of 2022 -- 1 of 7 -- [2026] WASCA 115 Page 2 Catchwords: Criminal Law - Appeal against conviction - Whether miscarriage of justice arose as a result of page numbering of transcript provided to the jury - Whether ground of appeal has any reasonable prospect of succeeding - Turns on own facts Legislation: Criminal Code (WA), s 325 Result: Leave to appeal refused Appeal dismissed Category: B Representation: Counsel: Appellant : H W Glenister Respondent : No appearance Solicitors: Appellant : William Gerard Legal PTY LTD Respondent : The Director of Public Prosecutions (WA) Case(s) referred to in decision(s): HCF v The Queen [2023] HCA 35; (2023) 280 CLR 596. -- 2 of 7 -- [2026] WASCA 115 REASONS OF THE COURT Page 3 REASONS OF THE COURT: 1 At the hearing of this appeal, we refused leave to appeal and dismissed this appeal. We said that we would publish reasons for making those orders later. These are our reasons for making the orders. 2 On 26 August 2025, at the end of a two-day trial before a judge and jury, the appellant was convicted of one count of sexually penetrating the complainant without her consent. That is an offence contrary to s 325 of the Criminal Code (WA). 3 The evidence at trial principally comprised the complainant's recorded evidence, given before another judge on 19 February 2024. That recording was played to the jury in the appellant's trial. The jury were given the usual direction that this was a routine procedure and that the recording had been edited with the agreement of the defence to remove irrelevant material.1 The State called two other witnesses, and the appellant elected to give evidence. 4 The appellant appeals against his conviction on the following ground: There was a miscarriage of justice occasioned by the provision to the jury of the transcript of the evidence given by the witnesses in the trial due to it containing pages numbers which communicated to the jury that the Appellant had been involved in extensive criminal proceedings in relation to the indictment. Particulars a. The fact that the Appellant had been involved in extensive criminal proceedings in relation to the indictment was extraneous information. b. That extraneous information gives rise to a reasonable apprehension that the jury might not have discharged its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. c. That reasonable apprehension is heightened in the context of there having been extensive media coverage of the extensive criminal proceedings in relation to the indictment. 5 As indicated by this ground, the offence of which the appellant was convicted on 26 August 2025 was one count in a larger indictment. 1 Trial ts 4104, 4121. -- 3 of 7 -- [2026] WASCA 115 REASONS OF THE COURT Page 4 The appellant had previously been tried on that indictment, and the jury had been unable to come to a verdict on various counts, including count 6 which charged the offence presently under consideration. Also, immediately before trial at which the appellant was convicted, there had been a trial of count 6 which was aborted after the jury in that trial had retired to consider its verdict. 6 At the current trial, a 'dummy' indictment containing only the count presently under consideration was given to the jury, and no mention was made of the earlier proceedings. 7 At the outset of the trial, the trial judge told the jury that they would receive a transcript of the witnesses' evidence in the trial.2 In his charge, the trial judge gave the jury directions about the status and use of the transcript,3 including that: It's a transcript only, though, of the evidence which came from the witnesses, so things that happen when you're not in court for example won't be in that transcript and, as you know, the recording of [the complainant's] evidence was edited by agreement by order of the court. So there will be gaps in the transcript. You might see the page numberings are out and there will be gaps in the transcript itself and that's the reason, why those things have been removed. It's only the evidence that you heard that the transcript will be given to you of. 8 The appellant's complaint arises out of the page numbering on the transcript provided to the jury. The transcript of the evidence of the witnesses who were present at trial ran from page 4121 to 4195, and after editing comprised 74 pages. The transcript of the complainant's recorded evidence ran from page 1076 to 1113, and after editing comprised 36 pages. We note that the prosecutor made regular reference to the page numbers of the transcript being referred to during his closing address to the jury. 9 Counsel for the appellant submits that the irresistible inference to be drawn from the page numbers on the transcript given to the jury is that the appellant had been involved in extensive criminal proceedings in relation to the indictment. He submits that the transcript page numbers communicated to the jury that the appellant was involved in extensive proceedings in relation to the indictment which likely involved other charges. He contends that there was a risk that this would cause the jury to make a link between the appellant and 2 Trial ts 4107. 3 Trial ts 4247 - 4248. -- 4 of 7 -- [2026] WASCA 115 REASONS OF THE COURT Page 5 extensive publicity which attended the earlier proceedings. Counsel submits that the jury might have speculated that the appellant had been charged with other offences, tried and convicted of them. 10 The appellant's counsel submits that a reasonable apprehension of bias arose on the basis that:4 The fair-minded lay observer might think that the extraneous information communicated to the jury might cause them to reason that the Appellant was generally of bad character and not to be trusted, or that he was the kind of person who commits, or gets involved in, this type of offending. The fair-minded lay observer might apprehend that the jury which might have reasoned in this way, might consequently have not decided the Appellant's guilt according to law and on the evidence. 11 There is no merit to these submissions for three reasons. 12 First, while those familiar with the transcribing of criminal proceedings in this State may know that transcript pages are normally numbered consecutively for all proceedings under the one indictment, this is not information likely to be known to a juror or a fair-minded and informed member of the public. The page numbers on the transcript did not communicate anything to the jury about whether the appellant had been involved in proceedings for other offences. 13 Secondly, the process of reasoning attributed to the fair-minded lay observer by the appellant's submission involves mere speculation unsupported by any fact established by the evidence. 14 Thirdly, the apprehension which the appellant seeks to attribute to a fair-minded lay observer involves the jury disregarding the trial judge's directions. Those directions included that: 1. The jury must not guess or speculate about matters not in evidence.5 2. It is the evidence and only the evidence which the jury must address and from which they must make findings of fact.6 3. The question for the jury was whether the State, on the basis of the evidence that the jury accepted, had proven the appellant's guilt beyond reasonable doubt.7 4 Appellant's submissions, par 14. 5 Trial ts 4243. 6 Trial ts 4243. -- 5 of 7 -- [2026] WASCA 115 REASONS OF THE COURT Page 6 4. The transcript provided to the jury was not evidence.8 15 The apprehension which the appellant seeks to attribute to a fair- minded lay observer also involves jurors acting contrary to their oaths or affirmations to give a 'true verdict according to the evidence'.9 16 In HCF v The Queen,10 the majority of the High Court (Gageler CJ, Gleeson and Jagot JJ) recognised that where, after the verdict, jury misconduct is said to give rise to a miscarriage of justice, the following question is to be asked:11 On the facts to be found on the balance of probabilities, might a fair- minded and informed member of the public reasonably apprehend that the jury or a juror might not have discharged the function of deciding the appellant's guilt according to law, on the evidence, and in accordance with the directions of the judge? 17 The majority held that, to be reasonable, an apprehension requires a positive feeling of actual apprehension or mistrust which has an objective basis in fact.12 18 The majority in HCF emphasised that violation of the juror's oath is not lightly to be inferred.13 Their Honours also referred to the assumption, which is fundamental to the criminal jury trial, that jurors understand and conform to the trial judge's directions.14 The minority (Edelman and Steward JJ) emphasised the same fundamental assumption of the criminal law.15 19 In the present case, there was no jury misconduct or other irregularity in the appellant's trial which would undercut this fundamental assumption. There is no basis on which a fair-minded and informed member of the public might apprehend that the jury might have decided the case otherwise than on the evidence in accordance with their respective oaths and affirmations and the trial judge's directions. The process of reasoning posited by the appellant's submissions amounts to speculation which has no objective basis in fact. There is no arguable basis for concluding that the page numbers 7 Trial ts 4247. 8 Trial ts 4247. 9 Criminal Procedure Act 2004 (WA), s 105. 10 HCF v The Queen [2023] HCA 35; (2023) 280 CLR 596. 11 HCF [14]. 12 HCF [13]. 13 HCF [16]. 14 HCF [62]. 15 HCF [85] - [89]. -- 6 of 7 -- [2026] WASCA 115 REASONS OF THE COURT Page 7 on the transcript provided to the jury gave rise to a miscarriage of justice in this case. The proposed ground of appeal has no reasonable prospect of succeeding. 20 Therefore, at the hearing on 19 August 2026, we made the following orders: 1. Leave to appeal on the sole ground of appeal is refused. 2. The appeal is dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. LK Associate to the Hon Justice Mitchell 19 AUGUST 2026 -- 7 of 7 --