EDWARD SULLIVAN EVERED (A PSEUDONYM) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 113

[2026] WASCA 113 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : EDWARD SULLIVAN EVERED (A PSEUDONYM) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 113 CORAM : VAUGHAN JA ARCHER JA BOND AJA HEARD : 13 OCTOBER 2025 DELIVERED : 20 AUGUST 2026 PUBLISHED : 20 AUGUST 2026 FILE NO/S : CACR 145 of 2024 BETWEEN : EDWARD SULLIVAN EVERED (A PSEUDONYM) Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : PETRUSA DCJ File Number : IND XXX of 20XX -- 1 of 67 -- [2026] WASCA 113 Page 2 Catchwords: Criminal law - Appeal - Sexual offences against children - Whether trial judge erred in failing to give curative direction about inadmissible evidence - Power to resentence or remit for resentencing on successful appeal against conviction on some counts on indictment Legislation: Criminal Appeals Act 2004 (WA), s 30(3), s 30(5), s 41(2) Criminal Code (WA), s 320, s 321 Result: Extension of time to appeal Leave to appeal on ground 2 Appeal allowed New trial ordered on counts 1 - 6 and 8 - 15 Liberty to apply for resentencing on counts 16 - 17, 19 - 28, 31 - 33 Category: A Representation: Counsel: Appellant : K Kumar Respondent : G N Beggs SC Solicitors: Appellant : Kaminni Kumar Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 Amaca Pty Ltd v Hannell [2011] WASCA 232; (2011) 42 WAR 224 Ardrey v The State of Western Australia [No 2] [2017] WASCA 41; (2017) 55 WAR 1 -- 2 of 67 -- [2026] WASCA 113 Page 3 BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2006] WASCA 49 (S); (2006) 151 IR 389 Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 178 Commissioner of the Australian Federal Police v Courtenay Investments Ltd [2016] WASCA 194; (2016) 117 ACSR 301 Cooper v Sinnathamby (No 1) [2006] WASCA 82 DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 Easterday v The State of Western Australia [2005] WASCA 105; (2005) 30 WAR 122 Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38 EPD v The State of Western Australia [2011] WASCA 264 Farnworth v The State of Western Australia [2024] WASCA 154 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 274 CLR 531 House v The King [1936] HCA 40; (1936) 55 CLR 499 John v Commissioner of Taxation (Cth) [1989] HCA 5; (1989) 166 CLR 417 KHA v The State of Western Australia [2022] WASCA 173; (2022) 305 A Crim R 265 Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 Larussa v The State of Western Australia [2023] WASCA 62 Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 Lynch v Commissioner of Police [2022] QCA 166; (2022) 11 QR 609 Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486 MDP v The King [2025] HCA 24; (2025) 99 ALJR 969 Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; (2025) 99 ALJR 486 NSA v The State of Western Australia [2023] WASCA 53 Orreal v The Queen [2021] HCA 44; (2021) 274 CLR 630 Owners of Shin Kobe Maru v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404 Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 Pilcher v HB Brady & Co Pty Ltd [2005] WASCA 159 Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343 -- 3 of 67 -- [2026] WASCA 113 Page 4 Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112 SBJ v The State of Western Australia [2019] WASCA 32; (2019) 54 WAR 310 The Commonwealth of Australia v Hospital Contribution Fund of Australia [1982] HCA 13; (1982) 150 CLR 49 Tzaidas v Child [2004] NSWCA 252; (2004) 61 NSWLR 18 Wallis v John Holland Pty Ltd [2024] WASCA 26; (2024) 386 FLR 129 Willoughby v Clayton Utz [2007] WASCA 5 Wilson v The State of Western Australia [2014] WASCA 236 Wong v Silkfield Pty Ltd [1999] HCA 48; (1999) 199 CLR 255 -- 4 of 67 -- [2026] WASCA 113 Page 5 (In accordance with an order made 26 August 2026 these reasons are published with the name of appellant anonymised and the redaction of certain potentially identifying evidentiary matters. The reasons may be re-published, with the full name of the appellant and the inclusion of the redacted evidentiary matters, after the retrial contemplated by the orders of the court.) VAUGHAN JA: 1 I have the considerable advantage of having read the separate but overlapping reasons for decision of Archer JA and Bond AJA in draft. I agree with their Honours, for the reasons that their Honours give, that there should be an extension of time to appeal; leave to appeal should be granted on ground 2; and the appeal should be allowed. However, I wish to develop my own reasons as to the court's powers on allowing an appeal against conviction and what this means for the appropriate orders in this case, having allowed the appeal. 2 Before doing so it is necessary to provide some context for the issue that arises. The issue that arises 3 Broadly speaking, the appellant was convicted of two categories of offences. First, offences against James (counts 1 - 6 and 8 - 15). Second, offences against William and Hugh (counts 16 - 28 and 31 - 33). The details of the offences are dealt with in Bond AJA's reasons. They do not matter for the issue I am addressing in these reasons. What is relevant for the issue I am addressing is that the appeal against conviction solely concerns the appellant's convictions on the James counts. Accordingly, the appellant's success on this appeal does not affect his convictions on the offences against William and Hugh. 4 The appellant was sentenced to a total effective sentence of 13 years and 6 months' imprisonment. This was made up of the following sentences to be served cumulatively: 1. Count 3 (in relation to James) - 5 years and 4 months' imprisonment. This was the head sentence. 2. Count 13 (in relation to James) - 3 years' imprisonment (reduced from 5 years and 4 months' imprisonment for totality). -- 5 of 67 -- [2026] WASCA 113 Page 6 3. Count 18 (in relation to William) - 3 years and 2 months' imprisonment. 4. Count 27 (in relation to William) - 2 years' imprisonment (reduced from 3 years and 2 months' imprisonment for totality). 5 All other sentences were to be served concurrently. 6 The offences against James contributed 8 years and 4 months to the total effective sentence of 13 years and 6 months' imprisonment. The offences against William and Hugh contributed 5 years and 2 months. However, it is apparent that at least some of the sentences imposed on the offences against William and Hugh were impacted by the sentences imposed on the offences against James. That is obvious from the circumstance that the sentence in respect of count 27 was reduced for the purpose of totality. It is confirmed by what the trial judge stated when imposing the sentences: Having regard to the issues of totality, given the offences occurred on separate occasions and involved three different complainants, I am satisfied there needs to be some accumulation. However, I must ensure that the total effective sentence that I impose bears a proper relationship to your overall criminality, and does give you some hope for the future. In my view, a total effective sentence of 13 years six months is a proper reflection of your overall criminality. To achieve this, I will reduce the sentences on count 13 to three years' imprisonment, and the sentence on count 27 to two years' imprisonment, and I will order that counts 13, 18 and 27 are to be served cumulatively on each other and cumulatively on count 3. That is to be the head sentence. All other sentences are to be served concurrently (ts 2337). 7 Accordingly, the sentences imposed on the offences against James impacted on the sentences imposed on the offences against William and Hugh in two ways. First, there was an impact so far as the sentence in relation to count 27 (offending against William) was reduced in application of the totality principle. Second, there was an impact so far as the sentences in respect of the offences against William and Hugh (other than the offences the subject of counts 18 and 27) were to be served concurrently with the sentence on count 3 against James, again in application of the totality principle. 8 In the latter respect, it is accepted that a decision to order that a term of imprisonment on an individual sentence is to be served -- 6 of 67 -- [2026] WASCA 113 Page 7 concurrently with a second sentence is 'part of the "sentence"' for the first offence: Larussa v The State of Western Australia.1 9 The appellant's appeal against conviction on the James counts will be allowed. One consequence of allowing the appeal against conviction will be that the convictions on the James counts will be set aside. But, as I have explained, the sentences imposed on the offences against James impacted on the sentences imposed on the offences against William and Hugh. In these circumstances the issue that arises is what, if any, scope is there for reconsideration of the sentences on the offences against William and Hugh. Is this court able to vary those sentences? Alternatively, is this court able to send those charges back to the District Court to be dealt with further? 10 The issue requires consideration of this court's jurisdiction and powers on an appeal against conviction pursuant to pt 3 of the Criminal Appeals Act 2004 (WA). The court's jurisdiction and powers 11 The Court of Appeal was established on 1 February 2005 by amendment to the Supreme Court Act 1935 (WA) made by the Acts Amendment (Court of Appeal) Act 2004 (WA). The Court of Appeal is a division of the Supreme Court: Supreme Court Act 1935 (WA), s 7. The General Division - the other division of the Supreme Court - exercises all of the jurisdiction of the Supreme Court other than the jurisdiction referred to in s 58(1) of the Supreme Court Act: Supreme Court Act, s 7(4). This includes the appellate jurisdiction provided for in s 20 of the Supreme Court Act. 12 Accordingly, s 58(1) of the Supreme Court Act specifies the jurisdiction of the Court of Appeal (that jurisdiction being subject to the restrictions stated in s 58(1a) and s 60 of the Act). The jurisdiction provided for in s 58(1) is not the entirety of the appellate jurisdiction of the Supreme Court - the General Division has separate and distinct appellate jurisdiction. 13 It has been said many times that an appeal is entirely a creature of statute. Putting aside, for the purpose of these reasons, further appeals against conviction under pt 3A of the Criminal Appeals Act, the Court of Appeal's jurisdiction to determine an appeal by an offender against conviction of a statutory offence on indictment is specifically conferred 1 Larussa v The State of Western Australia [2023] WASCA 62 [70]. -- 7 of 67 -- [2026] WASCA 113 Page 8 by s 58(1)(f) of the Supreme Court Act as read with pt 3 of the Criminal Appeals Act. See in particular s 23(1)(a), s 27(1), s 28 and s 30 of the Criminal Appeals Act. In this respect the scope of the jurisdiction and powers of the Court of Appeal is solely a matter of the statutory construction of the relevant Act or Acts: Amaca Pty Ltd v Hannell;2 Allbeury v Corruption and Crime Commission.3 14 More generally, the Court of Appeal's jurisdiction and powers are confined to the matters specified in s 58 - s 61 of the Supreme Court Act: Amaca Pty Ltd v Hannell [26]; Allbeury [173]; Commissioner of the Australian Federal Police v Courtenay Investments Ltd.4 To this should be added that, so far as interlocutory relief is concerned, the Court of Appeal has an incidental power to make such orders as are necessary to ensure the effective exercise of its jurisdiction (at least against the parties to the proceedings against whom final relief might be granted): Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia.5 15 Importantly, subject to that exception, the jurisdiction of the General Division of the Supreme Court in s 16(1) of the Supreme Court Act has no application to the exercise of appellate jurisdiction by the Court of Appeal: Amaca Pty Ltd v Hannell [26]; Allbeury [173]. Nor, as Martin CJ explained in Courtenay Investments Ltd [118] - [120], does the broad and general jurisdiction of the Court of Appeal in s 58(1)(a) and (b) of the Supreme Court Act have application to a matter such as the present - a first appeal against conviction of a statutory offence on indictment being within a 'more specific' component of the jurisdiction of the Court of Appeal as conferred by the Criminal Appeals Act. See also Allbeury [184], [189]. 16 In short, the jurisdiction of the Court of Appeal on a first appeal against conviction of a statutory offence on indictment is stated exhaustively in pt 3 of the Criminal Appeals Act and s 58(1)(f) of the Supreme Court Act: Allbeury [16] (see also [137] - [138], [184], [189], [195]). 2 Amaca Pty Ltd v Hannell [2011] WASCA 232; (2011) 42 WAR 224 [21]. 3 Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [2]. 4 Commissioner of the Australian Federal Police v Courtenay Investments Ltd [2016] WASCA 194; (2016) 117 ACSR 301 (Courtenay Investments Ltd) [118]. 5 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 [35]. -- 8 of 67 -- [2026] WASCA 113 Page 9 The relevant provisions of the Criminal Appeals Act 17 Part 3 of the Criminal Appeals Act deals with appeals from superior courts (ie the Supreme Court and the District Court). It provides for various rights of appeal. I am, in these reasons, only concerned with the Court of Appeal's power to reconsider sentences in the circumstances previously described. It is not necessary to develop the whole of the Criminal Appeals Act in considering that issue. It suffices to refer, in broad terms, to some of the statutory provisions as to decisions of the Court of Appeal on an appeal against conviction (s 30) and on an appeal against sentence (s 31). 18 Bond AJA reproduces the whole of s 30(5) of the Criminal Appeals Act dealing with what happens when this court allows an appeal against conviction. I will repeat the chapeau: If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must … 19 There then follows, in pars (a) - (e) of s 30(5), various consequential orders. These include ordering a trial or new trial (par a); entering a judgment of acquittal of offence A (par b); or, where the offender could have instead been found guilty of some other offence (defined as 'offence B') and the court is satisfied that the relevant trier of fact must have been satisfied of facts that prove that the offender was guilty of offence B, entering a judgment of conviction for offence B (par c). In that third scenario the Court of Appeal may impose a sentence for offence B that is 'no more severe' than the sentence that was imposed for offence A. 20 Another sentencing power on a conviction appeal is provided for in s 30(6). Section 30(6) presupposes that an appeal against conviction has been allowed and the Court of Appeal has made a consequential order under either s 30(5)(b) or (c). It provides: If the Court of Appeal enters a judgment of acquittal of offence A or enters a judgment of conviction of offence B, it may vary any sentence: (a) that was imposed for an offence other than offence A at or after the time when the offender was sentenced for offence A; and (b) that took into account the sentence for offence A. -- 9 of 67 -- [2026] WASCA 113 Page 10 21 Different sentencing powers are provided for where an appeal against sentence is allowed. Section 31(5) states: If the Court of Appeal allows an appeal referred to in subsection (1)(a) [relevantly an appeal against a sentence imposed as a result of a conviction on indictment], it must set aside the sentence … and: (a) may instead impose a new sentence that is either more or less severe …; or (b) may send the charge back to the court that imposed the sentence … to be dealt with further. 22 Accordingly, unlike the limited sentencing powers in s 30(5)(c) and s 30(6) on allowing an appeal against conviction, on allowing an appeal against sentence this court has an express power to remit the sentencing exercise to the primary court. 23 In addition, there must be reference to s 41(2) of the Criminal Appeals Act. Section 41(2) is located in pt 4 of the Act rather than pt 3. However, pt 4 is headed 'Provisions applicable to any appeal'. Section 37 confirms that pt 4, including s 41, applies to any appeal under the Act. Accordingly, among other things, it prima facie applies to an appeal against conviction of a statutory offence on indictment pursuant to pt 3. 24 Part 4 of the Criminal Appeals Act confers various powers on an appeal court; it also provides for other procedural matters in relation to the hearing and outcome of an appeal under the Act. Section 41 itself is concerned with sentencing or resentencing on appeal. For example, s 41(1) provides for ancillary powers where an appeal court decides to impose a sentence under the Act. Section 41(3) lists what an appeal court may do where it decides to vary a sentence under the Act. The various provisions of s 41 are in addition to and do not, except as expressly stated, affect the operation of the Sentencing Act 1995 (WA). 25 It is not necessary to mention all of the various provisions that apply to sentencing or resentencing on appeal pursuant to s 41 of the Criminal Appeals Act. It is enough to reproduce s 41(2). Section 41(2) states: If under this Act an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence: (a) that was imposed at or after the time when sentence A was imposed; and -- 10 of 67 -- [2026] WASCA 113 Page 11 (b) that took into account sentence A. 26 The term 'appeal court' means that division of the Supreme Court that has jurisdiction to hear the appeal (s 36) - in the present context it refers to the Court of Appeal. 27 Section 41(2) was considered in NSA v The State of Western Australia.6 NSA concerned an appeal against sentence rather than an appeal against conviction. In separate reasons Beech JA and I observed that, unlike s 31(5), s 41(2) empowered the appeal court to vary sentences other than the sentences the subject of the appeal [109] (Beech JA), [133] (Vaughan JA). All members of the court observed that the power to resentence under s 41(2) was more limited that the repealed s 693(1) of the Criminal Code (WA) that it replaced [68] (Mazza JA), [98] (Beech JA), [137] - [138] (Vaughan JA). Essentially this was because of the added requirement in s 41(2) that the other sentence 'took into account' the 'sentence A' that the appeal court varied or set aside under the Criminal Appeals Act. 28 Of the words 'took into account' I said: The phrase 'took into account' in s 41(2)(b) of the Criminal Appeals Act is not technical. The words bear their ordinary and natural meaning. A sentence (sentence X) will be one that 'took into account' another sentence (sentence A) where in imposing sentence X the sentencing court had regard to or gave consideration to sentence A. So understood the condition in s 41(2)(b) will invariably be satisfied where the outcome represented by sentence X was affected by sentence A; it may be, however, that sentence X took into account sentence A even if the sentencing outcome represented by sentence X was not affected by sentence A. The question whether sentence X took into account sentence A will be fact dependent. The answer will generally be self-evident by an analysis of the sentencing remarks and the sentencing outcome [139]. 29 Mazza JA and Beech JA adopted a similar approach [72] - [73] (Mazza JA), [93] (Beech JA). Orders to be made on allowing the appeal - excluding the issue as to reconsideration of the sentences on the offences against William and Hugh 30 A number of orders are self-evident as a consequence of allowing the appellant's appeal against conviction. First, given the express terms of the chapeau to s 30(5) of the Criminal Appeals Act, the court must 6 NSA v The State of Western Australia [2023] WASCA 53. -- 11 of 67 -- [2026] WASCA 113 Page 12 set aside the convictions for the offences against James. I would so order. It is in any case the natural consequence of allowing the appeal against the convictions. Second, the court must provide for one of the alternatives prescribed in pars (a) - (e) of s 30(5). In the present case it is appropriate to order a new trial on the counts for which the convictions are set aside. Again, I would so order. 31 Section 30(5) does not contain an express power to set aside a sentence imposed as a result of a conviction where the conviction is later set aside on appeal. By contrast, where there is a successful appeal against sentence, the court must set aside the sentence (s 31(5)). But in exercising jurisdiction conferred by statute a court has powers expressly or impliedly conferred by the legislation governing the court together with such powers as are 'incidental and necessary' to the exercise of the jurisdiction or the powers so conferred: Parsons v Martin.7 In recently confirming that principle as well established and beyond question Edelman J explained that: The powers that are 'incidental and necessary' to the exercise of express or implied statutory powers are … an implication from the statute, although they are in the nature of an implicature which depends less upon the text and more upon the incidents of the power and the necessity for its exercise.8 (citations omitted) 32 There is no doubt that this court has a power to set aside a sentence imposed as a result of a conviction where the conviction is later set aside on appeal. The power to set aside the attendant sentence is incidental and necessary to the exercise of the express power to set aside the conviction. A sentence is only imposed where a person is convicted of an offence. In that respect, the conviction provides the legal foundation for the sentence. Once the conviction is set aside, that foundation ceases to exist. So understood, the power to set aside a conviction must necessarily carry with it as an incident the power to set aside the sentence attendant on the conviction. 33 The preceding analysis is consistent with the reasoning of this court's predecessor, the Court of Criminal Appeal, when in Easterday v The State of Western Australia it held that the statutory power to quash a conviction impliedly carried with it an ancillary power to declare that a consequential order depending solely on the fact of the conviction was null and void.9 The same reasoning was adopted in relation to 7 Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235, 241. 8 Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; (2025) 99 ALJR 486 [58]. 9 Easterday v The State of Western Australia [2005] WASCA 105; (2005) 30 WAR 122 [21] - [27]. -- 12 of 67 -- [2026] WASCA 113 Page 13 s 30(5) of the Criminal Appeals Act in Ardrey v The State of Western Australia.10 34 Often, when this court sets aside a conviction having allowed an appeal, there is no order setting aside the attendant sentence. Perhaps that is because an order setting aside the sentence is implicit in the order setting aside the conviction. There is, however, good reason to make the additional order explicit in this appeal. I would so order. Orders to be made on allowing the appeal - the issue as to reconsideration of the sentences on the offences against William and Hugh 35 If things were to rest at this point, the appellant would remain subject to the sentences imposed on the offences against William and Hugh. But, as has been seen, those sentences were impacted by the sentences imposed in respect of the James counts. There is also a logical conundrum with the sentencing disposition that then prevails. The terms of imprisonment to be served on counts 16 - 17, 19 - 26, 28 and 31 - 33 (as to William and Hugh) were to be served concurrently with the term of imprisonment on count 3. But, for reasons I have explained, the sentence on count 3 will be set aside. 36 Focusing on the initial matter, rather than the consequential incongruity in the sentencing disposition, the State contends that merely subtracting the sentences imposed on the James counts does not result in a total effective sentence that properly reflects the appellant's offending against William and Hugh. However, the State says that it cannot identify any power whereby this court may resentence the appellant in relation to those offences. Nor, according to the State, may this court send the charges back to the District Court to be dealt with further. The State foreshadows that the appropriate course would be for it to commence an urgent appeal against sentence in relation to the sentences imposed on the offences against William and Hugh. 37 I do not wish to comment on the State's foreshadowed course of commencing an urgent appeal against sentence - whether such an appeal might have merit is a matter for the State to consider. 38 The State is correct so far as the State concludes that no relevant power to reconsider the sentences on the offences against William and Hugh arises under s 30(6) of the Criminal Appeals Act. The power of 10 Ardrey v The State of Western Australia [No 2] [2017] WASCA 41; (2017) 55 WAR 1 [160] - [161]. -- 13 of 67 -- [2026] WASCA 113 Page 14 variation in s 30(6) is preconditioned on a judgment of acquittal or a judgment of conviction on a different offence. It is not enlivened by the setting aside of a conviction (and attendant sentence) with a new trial. 39 However, contrary to the State's contention, I consider that s 41(2) of the Criminal Appeals Act empowers this court to vary all but one of the sentences imposed on the offences against William and Hugh. 40 The State submits that s 41(2) only applies where the court varies a sentence on appeal (State's further submissions, par 8). That is contrary to the plain words of the statutory provision. Section 41(2) may apply where the court 'varies' a sentence or where the court 'sets aside' a sentence. In the present appeal, as I have explained, the court has the power to set aside the sentences on the James counts; and, in my opinion, the court should set aside those sentences. 41 On its face, given the express terms of s 37, s 41(2) applies to any appeal under the Criminal Appeals Act. I acknowledge that this apparent reach of s 41(2) to all appeals under the Act - including, relevantly, to an appeal against conviction under pt 3 of the Act - may be affected by s 30(6). I consider and reject this possibility at [45] - [55] below. But once that constructional issue is overcome there are four integers to be met in the application of s 41(2). 42 Those four integers are as follows: 1. First, an appeal court must vary or set aside a sentence - this is the 'sentence A' mentioned in s 41(2). That requirement will be satisfied in the present case. Each of the sentences on the James counts is a 'sentence A' for the purpose of s 41(2) and will be set aside pursuant to the orders that I propose. 2. Second, the sentence must be varied or set aside 'under this Act' - ie under the Criminal Appeals Act. The word 'under' admits of both 'degrees of precision' and 'looseness and inexactness': Wallis v John Holland Pty Ltd.11 In context, the phrase 'under this Act' in s 41(2) means 'pursuant to', 'by virtue of', 'in accordance with' or 'by the authority of' the Criminal Appeals Act. So far as the sentences on the James counts are set aside by application of the incidental power I have identified - one that 11 Wallis v John Holland Pty Ltd [2024] WASCA 26; (2024) 386 FLR 129 [149] (and see generally at [147] - [153] as to the meaning to be given to the word 'under' in different contexts). -- 14 of 67 -- [2026] WASCA 113 Page 15 arises on exercise of the express power to set aside a conviction in s 30(5) of the Criminal Appeals Act - the sentences are to be set aside 'under' the Act. It suffices that the setting aside of the sentences is impliedly authorised by the Act. See by analogy Griffith University v Tang.12 3. Third, so far as it is proposed to vary a sentence, that other sentence to be varied must have been imposed at or after the time when sentence A was imposed. That temporal requirement is satisfied so far as the sentences on the offences against William and Hugh are concerned. All of the sentences were imposed at the same time. 4. Fourth, the other sentence (ie the sentence it is proposed to vary) must be one that 'took into account' a sentence A as varied or set aside under the Act. 43 In determining whether a sentence 'took into account' another sentence I adhere to the approach I expressed in NSA (see [28] above). I consider that, with one exception, each of the sentences for the offences against William and Hugh took into account one or more of the sentences on the James counts. The sentence on count 27 was reduced for totality; it plainly took into account the sentences on the James counts. See NSA [79], [94], [141]. So too did those sentences which were to be served concurrently with count 3 (ie the sentences on counts 16 - 17, 19 - 26, 28 and 31 - 33). See Larussa [70]. The one exception is the sentence on count 18. It cannot be said that the sentence on count 18 'took into account' one or more of the sentences on the James counts when the sentence on count 18 was to be served cumulatively and there is nothing in the sentencing remarks to suggest that the sentence was informed by any of the sentences on the James counts. See NSA [78], [95], [142]. 44 Accordingly, with the exception of the sentence on count 18, the integers for the application of s 41(2) are met as to the sentences imposed on the offences against William and Hugh. 45 I have held over whether s 41(2) might be excluded from applying on allowing an appeal against conviction under pt 3 of the Criminal Appeals Act because of the power in s 30(6). There is an obvious correlation in the language of the two provisions (see [20] and [25] above). It might be considered that, so far as the legislature has 12 Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 [89]. -- 15 of 67 -- [2026] WASCA 113 Page 16 expressly provided for the specific power in s 30(6) in particular circumstances where the Court of Appeal allows an appeal against conviction under pt 3, there is no equivalent power under s 41(2) in other circumstances where the Court of Appeal allows an appeal against conviction. That constructional result might be justified as a matter of necessary implication or on the basis that the general should not be construed as applying where the legislature has provided for something that is more specific. 46 Both arguments for reading down the application of s 41(2) cannot be sustained when s 30(6) and s 41(2) are read and construed in context and proper regard is had to the clear and unambiguous terms of s 37. 47 As to the first argument, it is material that s 41(2) confers a power on a court. Where a power is conferred upon a court, the power-conferring provision is to be construed as liberally as its terms and context permit: SBJ v The State of Western Australia.13 In general, unless there is something to indicate to the contrary, a provision conferring a broad power on a court should not be read down by making implications or imposing limitations which are not found in the express words of the grant of the power: Knight v FP Special Assets Ltd;14 Owners of Shin Kobe Maru v Empire Shipping Company Inc;15 Wong v Silkfield Pty Ltd;16 Mansfield v Director of Public Prosecutions (WA).17 No such contrary intention is revealed by the terms of s 41(2) or the Act more generally, including what is found in s 30(6). To the contrary, even though s 30(6) provides for an equivalent power in a more specific situation, s 37 confirms that the provisions of pt 4, including s 41(2), are of general application to appeals under the Act. 48 The second argument fails conformably with the first argument. 49 The canon expressum facit cessare tacitum rests on a negative implication - ie that where there is a specific statutory provision on a topic there is no room for implication of any further matter on the same topic. See John v Commissioner of Taxation (Cth).18 13 SBJ v The State of Western Australia [2019] WASCA 32; (2019) 54 WAR 310 [103]. 14 Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205. 15 Owners of Shin Kobe Maru v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421. 16 Wong v Silkfield Pty Ltd [1999] HCA 48; (1999) 199 CLR 255 [11]. 17 Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486 [10]. 18 John v Commissioner of Taxation (Cth) [1989] HCA 5; (1989) 166 CLR 417, 434. -- 16 of 67 -- [2026] WASCA 113 Page 17 50 It would be one thing to say that s 41(2) ought not to apply where, having allowed an appeal against conviction under pt 3 of the Criminal Appeals Act, the Court of Appeal entered a judgment of acquittal (under s 30(5)(b)) or a judgment of conviction on some other offence (under s 30(5)(c)). There is a reasonable basis to conclude that the legislature did not intend that a general power was to be available to do that which is the subject of a specific power - at least where the special power is subject to limitations and qualifications. Whether that is so in the present case need not be finally determined. An unusual feature of the interaction between s 30(6) and s 41(2) is that, once the particular subject matter of the powers is put aside, there is no real difference in the limitations and qualifications to the two powers. 51 However, this is not a case where there is an apparent conflict between two provisions in a statute. Section 30(6) provides for a specific power in the circumstances in which it applies - ie where, having allowed an appeal against conviction, the Court of Appeal enters a judgment of acquittal or a judgment of conviction on some other offence. But, in this respect, s 30(6) is dealing with a different circumstance to that provided for in s 41(2). There is no basis to conclude that the legislature intended s 30(6) to be exhaustive on the subject of where resentencing is permitted in the event that the Court of Appeal allows an appeal against conviction under pt 3. The conferral of the specific power in s 30(6) does not carry with it by necessary implication a statutory intent to limit the operation of the general power in s 41(2) outside the circumstances in which s 30(6) operates. To conclude that s 30(6) so limits s 41(2) would be inconsistent with the general principles that apply when construing a power conferred on a court. It would also ignore the terms of s 37. -- 17 of 67 -- [2026] WASCA 113 Page 18 52 The conclusion I reach based on the statutory language and context is confirmed by the provenance and purpose of s 41(2). This was explained by Hall J (Martin CJ and Mazza JA agreeing) in Wilson v The State of Western Australia: The explanatory memorandum to the Criminal Appeals Bill 2004 (WA) states that s 41 'addresses in part the recommendations made in the Murray Report in relation to s 689 and s 697 of the Criminal Code'. The relevant recommendation in the Murray Report (M J Murray QC, The Criminal Code a General Review 1983) related to the then s 689 of the Criminal Code. Section 689 was never amended however s 693 of the Criminal Code which was introduced in 1982 contained a similar power to that contained in s 41(2). The relevant part of the Murray Report states: 'In such cases commonly it is found that the aggregate sentence reflects what the court conceives to be a proper result for the totality of the offences. If one conviction is removed or one sentence altered it may well be that the aggregate picture is changed and that the Court of Criminal Appeal will feel that it is proper to adjust the other sentences to give effect of the intention of the sentencing court in relation to the proper disposition of the offences for which the convictions remain but in respect of which the sentences may now be seen to be passed on an artificial basis (Murray Report, page 463).'19 53 Accordingly, the recommendation that was the impetus for s 41(2) - and which s 41(2) was intended to give effect to - contemplated a situation where on allowing an appeal against conviction other convictions remained. The purpose of s 41(2) was to allow the appeal court to adjust the sentences on the remaining convictions. 54 Two further points should be made. First, the explanatory memorandum identified that s 41(2) of the intended Act was to '[s]et out the Court of Appeal's powers in sentencing or re-sentencing on appeals'. It did not distinguish between appeals against conviction and appeals against sentence. That is consistent with the Murray Report's reference to removing a conviction or a sentence. Second, in the explanatory memorandum it was said that the provision was based on s 693 of the Criminal Code. The former s 693(1)(a) expressly provided for a broadly equivalent resentencing power on other sentences that applied, among other circumstances, whenever the Court of Criminal Appeal allowed an appeal against conviction (although, as previously 19 Wilson v The State of Western Australia [2014] WASCA 236 [68]. -- 18 of 67 -- [2026] WASCA 113 Page 19 mentioned, the former resentencing power contained no equivalent to the condition in s 41(2)(b)). 55 The legislative history and the available secondary materials confirm what I have concluded as to the interaction between s 30(6) and s 41(2). Section 41(2) provides a general power applicable to all appeals under the Criminal Appeals Act. This includes an appeal against conviction under pt 3. The general power in s 41(2) ought not to be read down by the specific power in s 30(6), at least in those circumstances where s 30(6) does not operate. The specific power in s 30(6) is conferred to avoid any doubt that the Court of Appeal may resentence where it enters a judgment of acquittal or a judgment of conviction on some other offence. 56 Accordingly, I have concluded that - on the proper construction of s 41(2) of the Criminal Appeals Act - this court is empowered to vary the sentences imposed on the offences against William and Hugh (other than the sentence on count 18). 57 There is, however, a further matter that must be considered. I have, for the reasons previously stated, arrived at a conclusion as to the proper construction of s 41(2). What must now be confronted is that this court, differently constituted, reached a different view as to the scope of operation of s 41(2) in the 2022 decision of KHA v The State of Western Australia.20 58 In KHA an offender succeeded in a conviction appeal against three of five offences. In considering the consequences of that outcome and whether there might be a resentencing on the remaining convictions the court stated: The State accepted that the consequence of setting aside the convictions on counts 2, 3 and 5 is that the appellant remains subject to the head sentence of 3 years 6 months' immediate imprisonment imposed on count 1 and the concurrent sentence of 12 months' imprisonment imposed on count 4. The State submitted that neither s 30(6) nor s 41(2) of the Criminal Appeals Act empower this court to adjust the order that the sentence for count 4 be served concurrently with the sentence for count 1. The State's submission is correct. Section 30(6) in its terms only applies to allow the adjustment of other sentences where this court enters a judgment of acquittal or enters a conviction of an alternative offence. It does not apply where a conviction is set aside and a new trial is ordered. 20 KHA v The State of Western Australia [2022] WASCA 173; (2022) 305 A Crim R 265. -- 19 of 67 -- [2026] WASCA 113 Page 20 Section 41(2), in its context, is concerned only with appeals against sentence [149] - [150]. (emphasis added) 59 It will be apparent, from what I have previously stated, that I agree with the conclusion in KHA as to the unavailability of s 30(6). However, I respectfully disagree with the conclusion in KHA as to the scope of operation of s 41(2) - ie that the power in s 41(2) is only concerned with appeals against sentence. For the reasons I have given, properly construed, s 41(2) may apply to an appeal against conviction under pt 3 of the Act where, having allowed an appeal and set aside a conviction, the court sets aside an attendant sentence imposed as a result of the conviction. In the context of this appeal, on the construction of s 41(2) that I have arrived at, the court is empowered to vary the sentences imposed on the offences against William and Hugh (other than the sentence on count 18). 60 It then becomes necessary to consider whether this court may depart from the interpretation adopted in KHA. 61 I will not recite the authorities in this court and its predecessor on the principles that apply to whether it is appropriate to depart from an earlier decision of the court. Nor is it productive to summarise the different formulations of the state of satisfaction that must arise if there is to be such a departure. See generally Re Calder; Ex parte Cable Sands (WA) Pty Ltd;21 Pilcher v HB Brady & Co Pty Ltd;22 Willoughby v Clayton Utz;23 Longbottom v The State of Western Australia;24 Brewerton v The State of Western Australia;25 and Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia.26 Heydon J also summarises the various formulations of the applicable test in Green v The Queen.27 62 For present purposes it is enough that I acknowledge the considerable caution that must be observed in deciding to depart from an earlier decision of the court. This court will not lightly depart from one of its earlier decisions. It should only do so in circumstances where it is convinced that the earlier decision was wrong. In deciding whether to depart from an earlier decision it is relevant to consider the four 21 Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343, 354. 22 Pilcher v HB Brady & Co Pty Ltd [2005] WASCA 159 [24] - [26]. 23 Willoughby v Clayton Utz [2007] WASCA 5 [37]. 24 Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 [22]. 25 Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 178 [34]. 26 Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112 [56] - [57]. 27 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [84] (see also [83] - [87]). -- 20 of 67 -- [2026] WASCA 113 Page 21 factors identified in Pilcher v HB Brady & Co Pty Ltd [25] (these factors being derived from The Commonwealth of Australia v Hospital Contribution Fund of Australia28 and being summarised in John v Commissioner of Taxation (Cth) (438 - 439)). Those four factors are not exhaustive: Green v The Queen [85]. 63 I am conscious, also, that where this court is asked to depart from an earlier decision, it will often be convenient to convene a bench of five judges to consider the issue. That was not practicable in the present case. Prior to the appeal hearing the parties had not considered the resentencing issue. Even when the parties were given leave to file supplementary submissions on the point after the appeal hearing neither party drew KHA to the court's attention. 64 These circumstances heighten the caution I must exercise in considering whether to depart from KHA. However, it is clear that this court constituted by three members may overrule an earlier decision of its own in an appropriate case: Pilcher v HB Brady & Co Pty Ltd [24]. In that respect it is a judge's duty to apply the law as he or she understands it after careful consideration and with keen appreciation of the importance of certainty in the law and equal appreciation that adherence to a decision thought to be wrong can cause injustice: Tzaidas v Child.29 65 Departure from an earlier decision of the court on a question of statutory construction has particular considerations. The court has a fundamental duty to give effect to the intention of the legislature as enacted in a written law. However, where a subsequent court prefers another construction, 'mere preference' is not sufficient to warrant an overruling of the earlier decision. It is otherwise if the subsequent court is satisfied that the interpretation placed on the statute by the earlier decision was erroneous in the sense that it is opposed to the 'undoubted intention' of the legislature as enacted in the statute: John v Commissioner of Taxation (Cth) (451 - 452). 66 In Lynch v Commissioner of Police30 Beech AJA (Morrison and Bond JJA agreeing) examined the circumstances in which an intermediate appellate court might depart from its earlier decision on a question of statutory construction. After referring to the principle to be derived from Brennan J's judgment in John v Commissioner of 28 The Commonwealth of Australia v Hospital Contribution Fund of Australia [1982] HCA 13; (1982) 150 CLR 49 (Hospital Contribution Fund of Australia), 56 - 58. 29 Tzaidas v Child [2004] NSWCA 252; (2004) 61 NSWLR 18 [33]. -- 21 of 67 -- [2026] WASCA 113 Page 22 Taxation (Cth), as summarised in the preceding paragraph, and explaining it by reference to earlier High Court authority, Beech AJA cited intermediate appellate court authority to the effect that [68]: Unless an error of construction in the earlier decision is patent, or has produced unintended or irrational consequences, the earlier decision should stand. The court must have a strong conviction that the earlier decision was erroneous and the nature of the error of the earlier court must be one that can be demonstrated with a degree of clarity by the application of correct legal analysis. 67 It is also helpful to repeat what was said in John v Commissioner of Taxation (Cth) by the plurality (Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ) as to the special considerations applicable in cases of statutory construction and application: [I]n the end the justification for not following an earlier decision construing a statute must be that in the view of the court that earlier decision was wrong, that it was wrong in a significant respect, and that the court should give effect to the intention of the Parliament (440). 68 Accordingly, there is a 'high threshold' before the court will depart from an earlier decision as to the proper construction of legislation. This requires 'materially more' than mere persuasion that the alternative construction is preferable. The court must have a strong conviction that the earlier decision is wrong: Lynch v Commissioner of Police [69]. 69 Beech AJA identified the reason for caution in departing from an earlier decision as to the interpretation of a statute in terms that I would adopt: Experience shows that ambiguity in statutory language is commonplace. Thus, there will often be a choice to be made between competing constructions each of which is reasonably open on consideration of the text, context and purpose of the statute. If the mere preference of a later court for a different interpretation were sufficient to justify departure from the earlier decision, the law and its administration would be liable to undesirable and unjustified instability on the basis of … 'mere personal choice' … if preference for a different construction were a sufficient basis for departure from the construction adopted in [the court's earlier decision], next year a differently constituted court might prefer the construction adopted in [that earlier decision] and revert to it [70]. 30 Lynch v Commissioner of Police [2022] QCA 166; (2022) 11 QR 609. -- 22 of 67 -- [2026] WASCA 113 Page 23 70 I am satisfied that this court should depart from its earlier decision in KHA so far as KHA concluded that s 41(2) of the Criminal Appeals Act is concerned only with appeals against sentence. Critically, I have the necessary strong conviction that the conclusion in KHA as to the scope of operation of s 41(2) is contrary to the 'undoubted intention' of the legislature. This is not a matter of 'mere preference' where I favour one constructional choice over another. To the contrary, the statutory text, context and purpose compel the conclusion that KHA is wrong so far as it holds that s 41(2) is concerned only with appeals against sentence. It is not necessary, in this respect, to repeat the analysis that has already been undertaken in these reasons. KHA contains no reasoning that undermines that analysis. 71 There are two features of KHA which might explain its erroneous conclusion that the power in s 41(2) is only concerned with appeals against sentence. First, in KHA there was no consequential order setting aside the sentences imposed as a result of the convictions that were set aside on appeal. The absence of such an order might tend to obscure the potential applicability of s 41(2). Second, of particular significance to the question of statutory construction that arises, the court in KHA does not appear to have been referred to s 37 of the Act. As I have explained, s 37 is essential context in construing s 41(2) and determining its scope of operation. 72 The absence of any reference to s 37 significantly diminishes the force of the conclusion reached in KHA. Section 37 is critical to the proper construction of s 41(2). Once s 37 is taken into account, as it necessarily must be when construing s 41(2), that consideration materially contributes to the strong conviction that KHA is wrong so far as it holds that s 41(2) is concerned only with appeals against sentence. 73 The necessary strong conviction that this aspect of KHA is wrong is only one of two conditions that must be satisfied before this court may depart from its earlier decision. There must also be consideration of other factors going to whether the court should overrule its earlier decision: Green v The Queen [85]. Two of the matters which, in Hospital Contribution Fund of Australia, justified departure from an earlier decision are material considerations in the present case. Relevantly: 1. The conclusion in KHA on the scope of operation of s 41(2) did not rest on a principle carefully worked out in a significant succession of cases. To the contrary, as I will come to, KHA -- 23 of 67 -- [2026] WASCA 113 Page 24 did not consider an earlier case in which s 41(2) was applied in the context of an appeal against conviction. 2. The conclusion in KHA has not been independently acted on in a manner that militates against reconsideration. To the contrary, my research has not identified any subsequent decision which has considered this aspect of KHA. 74 I have omitted the third consideration in Hospital Contribution Fund of Australia. This is because, strictly speaking, it cannot be said that the construction of s 41(2) in KHA has led to considerable inconvenience. It may be accepted that no useful result has followed from the construction. But in circumstances where KHA has not been acted on at all there is no basis to say that KHA has led to considerable inconvenience. 75 Nevertheless, were KHA to stand it has the potential to lead to considerable inconvenience without any concomitant benefit to the due administration of justice. This court will be unable to resentence in situations like the present. That has the potential to result in urgent appeals against sentence by the State as has been foreshadowed in this case. Such a workaround is time consuming and cumbersome - public and private resources will be needlessly deployed in satellite appeals that might be avoided on the proper construction of s 41(2) as developed in these reasons. This is, in my view, a powerful reason to give effect to the intention of the legislature by departing from the earlier decision in KHA. 76 There are two additional material considerations. 77 First, KHA contains no reference to the 2011 decision of this court in EPD v The State of Western Australia.31 EPD is another case in which, following an appeal against conviction, some convictions were set aside but other convictions were unaffected by the appeal. The court set aside six of 13 convictions (counts 1 - 6), ordering a retrial on those counts, but also made orders setting aside the sentences on those counts. Importantly, contrary to the conclusion in KHA, the court in EPD proceeded to resentence on the seven counts that were unaffected by the appeal against conviction (counts 7 - 13). In other words, contrary to the conclusion in KHA, the sentences on the remaining counts were varied by this court on an appeal against conviction. 31 EPD v The State of Western Australia [2011] WASCA 264. -- 24 of 67 -- [2026] WASCA 113 Page 25 78 Mazza J (Martin CJ and Buss JA relevantly agreeing on this point) noted that a question arose as to whether the court could and should resentence on the remaining convictions [221]. His Honour then referred to s 30(6) and s 41(2) of the Criminal Appeals Act [222] - [223]. Mazza J concluded that s 30(6) did not apply [224]. But his Honour went on to find that s 41(2) was enlivened (in part because the court had set aside the sentences on counts 1 - 6) and that the court should vary the sentences imposed by the sentencing judge on counts 7 - 13 [224] - [225]. 79 In EPD, as in KHA, the scope of operation of s 41(2) was expressed by way of conclusion. In deciding whether to depart from KHA I am conscious that it is the later decision on the point. However, that means little where there are two conflicting decisions and EPD was not considered or referred to in KHA. 80 Second, in a decision subsequent to KHA, namely Farnworth v The State of Western Australia,32 this court tacitly accepted that s 41(2) could apply to vary sentences on an appeal against conviction where three of five convictions were set aside on appeal. However, the court did not in fact exercise the power under s 41(2) to vary the sentences on the remaining convictions. Accordingly, Farnworth does not strictly overrule KHA. Nor did the court refer to KHA or consider the issue as a matter of principle. In those circumstances the most I would take from Farnworth is that KHA has not resulted in general acceptance that the power in s 41(2) is only concerned with appeals against sentence. 81 I do not, in the circumstances that I have referred to, regard the court's earlier decision of KHA to be determinative of the scope of operation of s 41(2) of the Criminal Appeals Act. The court's earlier decision in KHA may be departed from without threatening the doctrine of precedent and the predictability of the law. In circumstances where, for reasons I have already given, I have a strong conviction that the conclusion in KHA is contrary to the 'undoubted intention' of the legislature, I am satisfied that the court should depart from its earlier decision in KHA so far as it concerns the scope of operation of s 41(2). 82 There is a further issue as to whether this court is able to remit the resentencing exercise to the sentencing judge. The State submits that there is no power to remit the charges involving William and Hugh to the District Court for resentencing if the convictions on counts 1 - 6 and 32 Farnworth v The State of Western Australia [2024] WASCA 154 [16], [64] - [67]. -- 25 of 67 -- [2026] WASCA 113 Page 26 8 - 15 are set aside. The appellant says that there is a power to remit. The appellant, by his counsel, refers to s 40(1)(l) of the Criminal Appeals Act (the power to exercise any power that the Supreme Court may exercise in a civil case) and s 17(2)(a), (3) and (6) of the Supreme Court Act (dealing with the transfer of an action or matter to a lower court). 83 It would be quite odd for this court to have a power to remit count 18 to the District Court for resentencing in circumstances where, as I have explained, s 41(2) of the Criminal Appeals Act does not allow this court itself to vary the sentence imposed on count 18. However, rather than focus on this incongruity, I will approach the issue of remitter more generally. Where, on a conviction appeal under pt 3, the court sets aside some of a number of convictions together with the attendant sentences imposed as a result of those convictions, is the court empowered to remit to the sentencing court for resentencing the charges in relation to the remaining convictions? 84 There is no express power in pt 3 of the Criminal Appeals Act to send the charges back to the sentencing court to be dealt with further. In this respect I have already contrasted the limited express powers in s 30(5)(c) and s 30(6) (on an appeal against conviction) with the express power to remit in s 31(5)(b) (on an appeal against sentence). See [22] above. It is also to be noted that the express power in s 31(5)(b) (on an appeal against sentence) is concerned with a situation that is qualitatively different to the situation now under consideration. Section 31(5)(b) is concerned with sending back the charge on the sentence the subject of the appeal - not other charges and their attendant sentences as is the subject matter of s 41(2). In any event the jurisdiction and concomitant powers on an appeal against sentence under pt 3 of the Criminal Appeals Act is yet to be invoked in the present case. 85 The basis for remitter is also unclear. The remaining convictions will not have been set aside. There is no express power to set aside the sentences imposed on the remaining convictions. Unless there is a basis to set aside the sentences on the remaining convictions there is nothing to send back to the sentencing court to be dealt with further. 86 The legislative gap is not bridged by s 40(1)(l) of the Criminal Appeals Act read with s 17(2)(a), (3) and (6) of the Supreme Court Act. -- 26 of 67 -- [2026] WASCA 113 Page 27 87 Section 40(1)(l) of the Criminal Appeals Act is concerned with 'dealing with' an appeal in the sense of the available processes and procedures in hearing and determining an appeal. It does not, by a sidewind, assimilate to an appeal under the Criminal Appeals Act all of the Supreme Court's remedies in a civil case, let alone the Court of Appeal's powers when exercising civil appellate jurisdiction. Moreover, as I have explained at [11] - [16] above, the Court of Appeal's criminal appellate jurisdiction and powers are confined by statute. Section 17 of the Supreme Court Act has no application to the exercise of the Court of Appeal's criminal appellate jurisdiction in the same way that the jurisdiction of the General Division in s 16(1) of the Supreme Court Act, including that in s 16(1)(b) and (c), has no application to the exercise of the Court of Appeal's criminal appellate jurisdiction. See by analogy Amaca Pty Ltd v Hannell [26]. 88 In any event the powers that the Supreme Court may exercise 'in' a civil case are distinct from the power 'to transfer' a civil case pursuant to s 17 of the Supreme Court Act. 89 Bond AJA has referred to s 21(3) of the Supreme Court Act. I respectfully take a different view as to the effect and significance of s 21(3). Section 21(3) is one of a number of provisions in s 21 providing for the procedure and practice of the Supreme Court when exercising jurisdiction conferred on or vested in the court. For example, s 21(3) allows the Supreme Court to determine the procedure and practice it considers appropriate where no procedure or practice is otherwise provided for. Generally, however, so far as regards the procedure and practice of the Supreme Court, jurisdiction is to be exercised in the manner provided by the Supreme Court Act and the rules of court. 90 Assuming, without deciding, that the reference to 'appellate' jurisdiction in s 21(3) includes the Court of Appeal's jurisdiction as well as the appellate jurisdiction conferred on the General Division by s 20 of the Supreme Court Act, there are three points that should be made as to s 21(3). First, at its highest s 21(3) provides a power to provide for procedure and practice in the exercise of jurisdiction where no provision, or appropriate provision, is made in that respect by the Supreme Court Act or rules of court. Second, the power in s 21(3) does not empower the court to contravene or override any statute or rules of court. Third, and importantly, nothing in s 21(3) enlarges the jurisdiction of the Supreme Court; the provision is simply concerned -- 27 of 67 -- [2026] WASCA 113 Page 28 with the procedure and practice to be adopted in the exercise of jurisdiction conferred on or vested in the court elsewhere. 91 Minds might reasonably differ on whether, on this appeal against conviction, this court has a jurisdiction rather than a power to vary the sentences imposed on the offences against William and Hugh (other than the sentence on count 18) under s 41(2) of the Criminal Appeals Act. Assuming, without deciding, that there is a 'jurisdiction' to be exercised under s 41(2) of the Supreme Court Act within the meaning of s 21(3) of the Supreme Court Act, s 21(3) is still unavailable to remit the resentencing exercise to the District Court for at least three reasons. 92 First, s 21(3) of the Supreme Court Act cannot be employed to provide for a procedure or practice contrary to that contemplated by s 41(2) of the Criminal Appeals Act. Section 41(2) provides for a resentencing, by varying the other sentences, by the appeal court. Section 21(3) of the Supreme Court Act cannot override what is expressly provided for in s 41(2) of the Criminal Appeals Act by allowing this court, as the relevant 'appeal court', to in effect delegate the resentencing to the District Court. 93 Second, s 21(3) of the Supreme Court Act merely empowers the court to make provision for its procedure and practice in the exercise of its jurisdiction. The section is premised on the court exercising the relevant jurisdiction. The power under s 21(3) does not extend to remitting the exercise of jurisdiction to another court. 94 Finally, even if the preceding substantive matters were ignored, it is not the case that the rules of court make no provision or no adequate provision for the resentencing exercise contemplated by s 41(2) of the Criminal Appeals Act. This court commonly resentences using the procedure and practice provided for under the Criminal Appeals Act and the Supreme Court (Court of Appeal) Rules 2005 (WA). The same procedure and practice is available - and is appropriate - in this case. 95 Accordingly, s 21(3) of the Supreme Court Act does not empower this court to remit the appellant's charges involving William and Hugh to the District Court for resentencing. 96 Nor, as a separate matter, is there an incidental power to remit by virtue of the principle, already discussed, that the court has such powers as are 'incidental and necessary' to the exercise of its jurisdiction or other powers. It may be accepted that a power to remit is a normal and usual incident of appellate jurisdiction. But the court's incidental -- 28 of 67 -- [2026] WASCA 113 Page 29 powers are concerned with what is necessary in the exercise of jurisdiction or other powers rather than what is normal. In this context 'necessary' is used in the sense of matters that are reasonably required or legally ancillary - as opposed to 'essential' - to the exercise of the court's jurisdiction or powers: Pelechowski v The Registrar, Court of Appeal (NSW).33 Even in that extended sense it cannot be said that the power to remit is 'necessary' where this court can itself resentence pursuant to the express power in s 41(2) of the Criminal Appeals Act. 97 The legislature, by s 41(2) of the Criminal Appeals Act, has made specific provision for the repository of the resentencing power conferred by that section. The power is conferred on the appeal court. The express power so conferred leaves no room - and no necessity - for the implication of an incidental power to remit the resentencing power to the sentencing court. That is even more so given that, in s 31(5)(b) of the Act, the legislature granted such an express power where it was deemed appropriate. The omission to do so in s 41(2) ought to be regarded as deliberate. There is no proper basis to construe that there is an incidental power to remit the resentencing power in s 41(2). 98 This analysis is confirmed by the explanatory memorandum to the Criminal Appeals Bill 2004 (WA) (the Bill that became the Criminal Appeals Act). The explanatory memorandum mentions, as to the clauses introducing both s 31 and s 41 of the Criminal Appeals Act, that the provisions address in part recommendation 349 of the Law Reform Commission of Western Australia's 'Project 92 Report'. That Report, completed in September 1999, is entitled 'Review of the Civil and Criminal Justice System in Western Australia'. Recommendation 349 states: The powers of a member of the Full Court of the Supreme Court or of the Court of Criminal Appeal should be specified with regard to the form of orders and incidental matters following the determination of any civil or criminal appeal. 99 Accordingly, resort to the secondary materials confirms what is revealed by the legislation itself. The legislature intended, by s 41(2), to specify exhaustively the repository of the resentencing power so conferred. It is to be exercised by the appeal court and only by the appeal court. 33 Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 [51]. -- 29 of 67 -- [2026] WASCA 113 VAUGHAN JA ARCHER JA Page 30 100 I would, for these reasons, answer the question posed at [83] above 'No'. Where, on a conviction appeal under pt 3 of the Criminal Appeals Act, this court sets aside some of a number of convictions together with the attendant sentences imposed as a result of those convictions, the court is not empowered to remit to the sentencing court for resentencing the charges in relation to the remaining convictions. So far as there is to be a resentencing on those other charges the resentencing is to be conducted by this court pursuant to s 41(2) of the Act (assuming that s 41(2) permits a variation of the sentences). Conclusion and orders 101 For these reasons I would make orders in terms of pars 1 - 4 of the orders proposed in Bond AJA's reasons. However, I would not make an order in terms of par 5 as proposed by Bond AJA. Rather, I would entertain an application by either of the parties to vary the sentences imposed on one or more of counts 16 - 17, 19 - 28 and 31 - 33 (ie the sentences on the offences against William and Hugh other than the sentence on count 18). Any such application should be made within 28 days after the date of delivery of these reasons. 102 In the preceding paragraph I have used the word 'entertain' advisedly. It is well established that the power to vary other sentences under s 41(2) involves the exercise of a judicial discretion: Wilson v The State of Western Australia [68]. The parties have not been heard on whether the power should be exercised; and, if so, in what way the power should be exercised. The parties must be given that opportunity before the court determines any application pursuant to s 41(2). I would hear from the parties as to whether, at this point, any programming orders should be made in the eventuality that there is an application pursuant to s 41(2). ARCHER JA: 103 The background and details of the learned trial judge's directions have been comprehensively set out by Bond AJA. I agree with his Honour that the appeal should be allowed, but prefer to express my own reasons. 104 As Bond AJA has said, the main issue in dispute in relation to the counts involving James was whether James had correctly identified the appellant as the person who had offended against him. The State sought to prove that element by circumstantial evidence. That evidence included observations James had made about the offender and -- 30 of 67 -- [2026] WASCA 113 ARCHER JA Page 31 information James had been given by the offender. The State also relied on evidence from the other complainants to prove, in effect, that the appellant matched the man James was describing. [Redacted]. 105 The State did not contend that the evidence of the other complainants as to the appellant's sexual offending against them was admissible as tendency evidence in relation to the counts involving James. That is, the State did not contend that the evidence of one of more of the other complainants showed that the appellant had a sexual interest in children (or in boys) and a tendency to act on that sexual interest, and that this tendency made it more likely that the appellant was the person who had offended against James. 106 The risk that a jury may engage in impermissible tendency reasoning is particularly acute in cases involving sexual offences. This does not mean that an anti-tendency direction will always be necessary. The extent of the risk will depend upon the matters in issue and the other directions given by the trial judge.34 107 Bond AJA has set out the extensive directions given by the learned trial judge. As his Honour identified, the learned trial judge directed the jury that it could not use Nora's evidence of uncharged sexual acts to reason that, because the appellant had acted in a sexual way towards Nora on another occasion, that he was the type of person likely to have committed the two offences involving Nora or, in fact, any of the other charged offences. The learned trial judge gave a similar direction in relation to William's evidence of uncharged sexual acts. The learned trial judge did not, however, include in this direction the evidence of Nora and William as to the charged sexual acts. 108 As Bond AJA has identified, in summarising the case in relation to the counts involving James, the effect of the learned trial judge's directions was to tell the jury that it could take into account all of the evidence (that is, not only James' evidence) in deciding whether the appellant was the person who offended against James. 109 In this case, the sole issue in relation to the counts involving James was identity, and the evidence as to identification was circumstantial. Given this, and in the context of the directions that the learned trial judge gave the jury, I am satisfied that the risk that the jury may engage 34 Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 274 CLR 531 [43]. -- 31 of 67 -- [2026] WASCA 113 ARCHER JA BOND AJA Page 32 in impermissible tendency reasoning in relation to the counts involving James was such as to require an anti-tendency direction to be given.35 110 During the hearing of the appeal, the State properly conceded that the learned trial judge did not give the jury an anti-tendency direction.36 This was not because her Honour misunderstood the law or failed to appreciate the risk that the jury might engage in impermissible tendency reasoning. Her Honour expressly recognised the need to give such a direction in discussions with counsel prior to charging the jury, and said that she would give that direction.37 That her Honour did not do so was simply an oversight in an otherwise comprehensive charge that went for a full day, and which was delivered following a complex and lengthy trial. I would further observe that it is regrettable that neither counsel (not counsel in the appeal) alerted her Honour to the oversight. A trial judge should be able to rely on counsel to draw to his or her attention obvious oversights such as this one. 111 I agree with Bond AJA that the reason for the delay in commencing the appeal has not been fully explained. Nevertheless, as there is merit in the appeal, I also agree that an extension of time should be granted. 112 I agree with Vaughan JA, for the reasons given by his Honour, that this court has the power to vary the sentences imposed on counts 16 - 17, 19 - 28, and 31 - 33, but does not have the power to remit those counts to the District Court for resentencing. I agree with Vaughan JA, for the reasons given by his Honour, that orders 1 - 4 of the orders proposed by Bond AJA should be made, that the parties should be given the opportunity to make an application that the sentences imposed on one or more of those counts be varied, and that we should hear from the parties as to whether programming orders should be made. BOND AJA: Introduction 113 Between 14 August 2023 and 5 September 2023 the appellant stood trial in the District Court of Western Australia on an indictment alleging 33 counts of child sexual offending against 4 separate child 35 And see Hamilton [44]. 36 Appeal ts 19 - 22. 37 Trial ts 1917, 1924 - 1925. -- 32 of 67 -- [2026] WASCA 113 BOND AJA Page 33 complainants. In these reasons pseudonyms will be used for each of the children. 114 Counts 1 to 6 and 8 to 15 of the indictment38 alleged sexual offending against James. The offending was alleged to have occurred in the period [redacted] when James was aged between 13 and 15. The appellant was 7 years older. Neither the appellant nor James had known each other. James did not report the matter to police until [redacted]. The main factual issue at trial was whether James had correctly identified the appellant as the offender. 115 Broadly speaking, the remaining offending alleged in the indictment was alleged to have occurred in a period which preceded the offending against James, although there was some possible chronological overlap. Counts 16 to 28 alleged offending against William. The offending was alleged to have commenced when William was aged 12 and finished when he was aged 15. Counts 29 and 30 alleged offending against Nora, [redacted]. The offending was alleged to have occurred when Nora was aged between 13 and 16. Counts 31, 32 and 33 alleged offending against Hugh. The offending was alleged to have occurred when Hugh was aged between 13 and 16. The appellant was 6 to 7 years older than William; 3 years older than Nora and 6 years older than Hugh. The appellant and William, Nora and Hugh were all known to each other. The main factual issue at trial in relation to the three children was whether the offending had occurred. 116 On 5 September 2023, the appellant was acquitted of the counts which alleged offending against Nora but convicted on all 30 remaining counts.39 On 17 November 2023 the appellant was sentenced to separate fixed terms of imprisonment for each count. Pursuant to s 88(2) of the Sentencing Act 1995 (WA), the appellant would serve those terms concurrently unless the court made an order under s 88(3) for cumulation or partial concurrency. 117 If each of the separate sentences had been cumulated, the total effective sentence would have been almost 80 years' imprisonment. The sentencing judge was satisfied that there had to be some cumulation but appreciated that she would need to take into account totality considerations and the need to ensure that the total effective 38 Count 7 was discontinued in the presence of the jury during the trial. 39 Counts 16, 17 and 18 as indorsed alleged indecent dealing of a child under 13, but the appellant was convicted of the statutory alternative of indecent dealing with a child of or over 13 and under 16. -- 33 of 67 -- [2026] WASCA 113 BOND AJA Page 34 sentence bore a proper relationship to the appellant's overall criminality and that it gave the appellant some hope for the future. 118 Ultimately her Honour adjusted the separate sentences by ordering - (a) count 3 to be the head sentence; (b) the sentences for counts 13 and 27 to be reduced from what they otherwise would have been; (c) counts 13, 18 and 27 to be served cumulatively on each other and cumulatively on count 3; and (d) all other sentences to be served concurrently. 119 The result was a total effective sentence of 13 years and 6 months' imprisonment to commence on 5 February 2022. The appellant was ordered to be eligible for parole. He would become eligible for parole after serving 11 years and 6 months' imprisonment. 120 On 21 December 2024 the appellant filed an appeal notice seeking leave to appeal against his conviction in respect of the counts concerning James and, because the notice was a little more than 1 year out of time, an application for an extension of time to file the notice. The appellant did not seek to appeal against his convictions in respect of the counts concerning William and Hugh. He did not seek to appeal against his sentences for any of the counts of which he was convicted. 121 On 24 December 2024 the appellant filed his appellant's case. Notably the only orders sought were: 1. Leave to appeal on Ground One is granted and the appeal is allowed. 2. Leave to appeal on Ground Two is granted and the appeal is allowed. 3. The verdicts for counts 1 - 15 on Indictment XXX of 20XX dated 21 August 2023 and a new trial is ordered. (sic) 122 It is evident that the appellant had given insufficient attention to the formulation of the orders he had sought. First, as count 7 had been discontinued, presumably he intended order 3 to be read as if it referred to counts 1 to 6 and 8 to 15. Second, presumably he also intended order 3 to be read is if the words 'be set aside' appeared before the -- 34 of 67 -- [2026] WASCA 113 BOND AJA Page 35 words 'and a new trial is ordered'. Third, and of substantive significance, the appellant failed to seek any order in relation to the sentence. This was a significant omission because in the event that the appeal was successful and a new trial ordered in respect of counts 1 to 6 and 8 to 15 one would have thought that, at the least, the appellant would not wish the sentences imposed in respect of those counts to stand so that the consequences specified in s 41(6) to (10) of the Criminal Appeals Act 2004 (WA) would apply.40 It will appear that this gives rise to some complexity because of the interrelationship between the sentences which were imposed for those counts and the sentences which were imposed for counts 16 to 28 and counts 31, 32 and 33. 123 On 27 December 2024, Buss P ordered that the appellant's application for an extension of time within which to appeal and his application for leave to appeal be referred to the hearing of the appeal. 124 The appellant's application gives rise to three substantive issues. First, should he obtain the very significant extension of time which he seeks? Second, is there sufficient merit in either of his grounds of appeal to justify setting aside the impugned verdicts and sentences and ordering a new trial of the relevant counts? Third, if there is, what orders should be made in relation to the sentences of imprisonment to which the appellant is subject? Each of those issues will be addressed under a separate heading below. Extension of time 125 At the hearing of this application, the court pointed out to the appellant the inadequacy of the evidence and submissions which he had placed before the court on the question of extension of time. The court made orders providing for the submission of further affidavit material and submissions on that question. 126 The considerations which are relevant to assessing the applications for an extension of time are identified in Wilson v The State of Western Australia.41 More is required than establishing that the proposed appeal ground would have succeeded in a regularly instituted appeal. Relevant considerations include: 40 Essentially that an appropriate memorandum concerning the outcome is supplied so that the records of the department as defined in the Prisons Act 1981 (WA) are amended accordingly. 41 Wilson v The State of Western Australia [2014] WASCA 236 [27] - [29] (Hall J; Martin CJ & Mazza JA agreeing). -- 35 of 67 -- [2026] WASCA 113 BOND AJA Page 36 (a) the nature and extent of the delay; (b) the reasons for the delay; (c) the proposed grounds of appeal and their merit; (d) the prejudice to the appellant if an extension of time is not granted; and (e) the prejudice (if any) to the State if an extension of time is granted. The delay and the reasons for it 127 It is common ground that the delay of over a year is gross and inordinate. 128 In this case, the appellant has not submitted any personal affidavit explaining his reasons for the delay. Instead he relies on two affidavits sworn by his counsel on appeal. The respondent has not submitted any affidavit material. 129 The relevant facts revealed by the evidence of the appellant's appeal counsel are as follows: (a) Legal Aid records suggested that the effective date for the original grant of legal aid for the appeal was 8 December 2023. (b) The appellant's previous appeal counsel advised appeal counsel: The grant was received on 11 December 2023. The matter was complex and voluminous and required the consideration of a large number of possible grounds. I adopted the view that a Notice of Appeal ought not be filed until merit in any of the possible grounds was identified. I would then be required to seek an extension to the grant to pursue those grounds. I endeavoured to complete my assessment of the material from receipt of the grant into January and February 2024. In early February I began preparation for a 3 month trial commencing at the beginning of March 2024. As the trial approached and significant trial issues arose, less time was able to be devoted to completing my review of the [appellant's] matter. Ultimately, the trial was about to commence and I accepted that realistically I would not be able to complete my review of the [appellant's] -- 36 of 67 -- [2026] WASCA 113 BOND AJA Page 37 matter until the trial was completed. I then approached [the appellant's appeal counsel] and asked if she was interested in taking the matter over. [The appellant's appeal counsel] agreed and she took the matter over. I believed this happened sometime in early March 2024. (c) The appellant's appeal counsel deposed that she was first approached by the appellant's previous appeal counsel to consider an appeal against conviction on 12 March 2024. The appellant's previous appeal counsel led her to understand that there was only potential merit in appealing the conviction in respect of the counts involving James. By that time the appellant was already well out of time to file an appeal. (d) On 22 July 2024 the grant of legal aid to advise on merit was transferred to the appellant's appeal counsel. There is no direct explanation for the delay between 12 March 2024 and 22 July 2024, although one might infer that it had something to do with obtaining that transfer. (e) Counsel could only attend to her brief 'in-between balancing other criminal trial and appellate work'. She described what was involved in the weight of that other work. Understandable personal commitments also had to be accounted for. (f) She attended on the appellant by e-visits at prison on 1 August, 24 September and 17 October 2024 and finalised her written opinion on 25 October 2024. She supported the previous appeal counsel's description of the matter as complex and voluminous. (g) On 27 November 2024 counsel conducted a further e-visit with the appellant and obtained instructions. Ultimately that led to the formal filing of the documents which commenced the applications presently before the court. (h) In her first affidavit the appellant's appeal counsel described the approach she took in these terms: Since acceptance of the matter and realising that the appeal was already well out of time it had not been my intention to file a notice of appeal until I had determined merit and was in a position to prepare and fully complete the appellant's case for filing. (i) She expanded on that explanation in her second affidavit in this way: -- 37 of 67 -- [2026] WASCA 113 BOND AJA Page 38 I have turned my mind very carefully back to when I had received this matter and why I did not simply file the appeal notice without considering merit. I think a few factors influenced my decision-making: I had sincerely believed that I was assisting the Court by not clogging up this Court's already busy case management list with yet another appeal which may not ultimately go anywhere. To my mind, it seemed futile to commence an appeal already 4 months out of time prior to properly considering merit. An appeal notice can take a few hours to prepare, this one would have taken up to 2 - 3 hours at least due to the length of the indictment. When the grant is only for advice, it would require a practitioner to seek and justify an extension of aid for 2 - 3 hours to prepare an appeal notice for an appeal which is already out of time and for which they have not yet considered merit. A senior practitioner of many more years standing than me, had already not filed the appeal notice in order to consider merit himself. This reinforced my view that it was futile to file one without first considering merit. It seemed hasty in a child sex offence case to file a notice of appeal, already out of time, without considering merit which would have had the consequential effect of the victim [James] being notified and if there were in fact no grounds, they may have spent all the time worrying about an upcoming appeal and possibility of a re-trial for nothing. In hindsight, I accept I should have been more realistic in my assessment of my capacity and not taken this matter on at all, however there was something in me compelling me to help out as [the appellant's previous appeal counsel] had expressed the feeling that there might be something in it. Having heard [the respondent's] submission at the hearing [of the appeal], I accept that my further delay in filing an appeal notice, had the undesirable effect of the Court not being able to case manage the matter. This was my mistaken professional judgment on the situation and not the fault of the appellant and I apologise to the Court and the appellant for this decision.' 130 Appeal counsel was plainly right to conclude that an appeal notice should not be filed without considering merit: counsel should not be involved in settling allegations to be advanced in a criminal appeal without forming the view that the case so advanced is reasonably -- 38 of 67 -- [2026] WASCA 113 BOND AJA Page 39 justified by the material then available to counsel.42 Perhaps appeal counsel was right to express the commendably frank retrospective view that given the other demands on her time, and the delay which had already occurred outside her control, she probably should not have accepted the brief.43 However, it is not necessary to form a view on that question because we are not here considering whether she properly discharged her professional duties in the relevant respects. Rather we are considering the position from the point of view of the adequacy of the explanation proffered for the appellant. 131 On the present material I would infer that the complexity of the matter and the size of the documentation involved rendered it unlikely that a lawyer properly performing his or her duty could have advised on the merits of appeal grounds, obtained instructions and settled appeal grounds sufficiently to enable the appeal to be commenced within time. But that could and should have been dealt with by an application to the Court of Appeal for directions in relation to a proposed appeal. That application did not need to await the commencement of the appeal. In that way the process could have properly been managed. 132 Some part of the inordinate delay which has been experienced should be regarded as explicable by the size and complexity of the task. Any delay beyond what would be regarded as a reasonable time within which to perform the requisite task would not be regarded as sufficiently explained. 133 Moreover, these matters must be considered in the real world. That involves considering the ability of the appellant to identify and to brief counsel who could, given the exigencies of the existing demands on their time, perform the requisite tasks to enable an appeal to be commenced. The resources of the appellant would need to be considered. If legal aid was required, then the practical exigencies of applying for and obtaining legal aid, including the time taken to obtain a grant, and, if transfer to another counsel became necessary, the time necessarily taken in that task, would also need to be considered. 134 Unfortunately, the present material does not permit the extent of the explanation which might be open to the appellant on either of the 42 See generally the rules concerning a barrister's duty to the court, the duty to be independent and the duties concerning the efficient administration of justice and the responsible use of court process which are expressed in r 23, r 42, r 57, r 60 and r 64 of the Legal Profession Uniform Conduct Rules (Barristers) Rules 2015 (WA). 43 The relevant duties affecting that decision include r 17 and r 57 of the Barristers' Conduct Rules. -- 39 of 67 -- [2026] WASCA 113 BOND AJA Page 40 bases just mentioned to be reliably assessed. The result is that it must be concluded that the inordinate delay is only partially explained. The proposed grounds of appeal and their merit 135 I address that assessment under the next major heading. For reasons there expressed, my view is that there is merit in the proposed appeal. The competing prejudices and conclusion as to the application for extension 136 It follows that my view is that, if the extension is granted, the appellant would establish that there had been a miscarriage of justice in relation to his conviction on the counts involving James. Those convictions would be set aside and a new trial ordered. On any view those convictions account for a large component of the total effective sentence imposed on the appellant. The prejudice to him of any refusal of an extension of time is significant. 137 I would accept the following written submissions advanced by the State as to the prejudice it might suffer if an extension of time is granted: … the respondent's enquiries reveal that consent orders that the [child complainant] witnesses be declared special witnesses pursuant to ss 106R(l)(a) and 106R(3a) of the Evidence Act 1906 and their evidence be recorded on a visual recording pursuant to ss 106R (4a) and 106N (3a) of the Evidence Act 1906 were signed by the parties on 25 February 2022. … As such, in the event that a retrial is ordered, the evidence of those witnesses could be adduced by the playing of the visual recordings, subject to any applications defence counsel may wish to make to re-open cross-examination. It remains the respondent's position that the delay in instituting this appeal is highly unsatisfactory. Complainants and witnesses, particularly in cases of child sex offending, are entitled to finality and certainty of proceedings. Where an appeal is instituted so long after the recording of convictions and the sentencing of an offender, that delay is likely to have a significant adverse impact upon a complainant's mental wellbeing and has the potential to re-traumatise them. 138 The State submits, correctly in my view, that the delay is gross and the reasons for that delay are far from satisfactorily explained. Nevertheless, it accepts that, if the grounds of appeal would otherwise -- 40 of 67 -- [2026] WASCA 113 BOND AJA Page 41 be allowed, the prejudice to the appellant if an extension of time is not granted is likely to outweigh the prejudice to the State if an extension of time is granted. 139 Although I accept that more is required to justify the extension of time sought than merely establishing that the proposed appeal would have succeeded in a regularly instituted appeal, I agree with the State's judgment concerning the balance of prejudice. 140 I would grant the appellant's application for the requisite extension of time. Consideration of the grounds of appeal The relevant counts 141 The table below identifies the 33 counts of child sex offending alleged against the appellant in IND XXX of 20XX, and the disposition of those counts at trial. It is convenient to refer to counts 1 to 6 and 8 to 15 as 'the James counts' and to the remaining counts as 'the other complainants' counts'. [Redacted] The pre-trial applications 142 The appellant had advanced a pre-trial application that the trial of the James counts be conducted separately from the trial of the other complainants' counts. The State applied for orders that evidence was cross-admissible as between the two groups of counts as propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA). The appellant's application for separate trials failed. 143 The judge who determined the separate trial application identified that the issue for her Honour to consider was whether some of the evidence pertaining to the other complainants' counts was capable of being used as part of the circumstances giving rise to the jury's consideration of the identity of the accused for the purposes of the James counts. 144 Her Honour noted the State's submissions that: (a) [Redacted] (b) [Redacted] -- 41 of 67 -- [2026] WASCA 113 BOND AJA Page 42 145 Her Honour concluded that that evidence was admissible on the James counts as circumstantial evidence: that is, as evidence going to the circumstances that the State would rely upon when they sought to prove identity in relation to those counts. On that basis, save for the question of prejudice, her Honour considered that the charges were properly joined. 146 Her Honour accepted that there was a real risk of prejudice to the appellant where evidence from witnesses in relation to the other complainants' counts was admissible in relation to the James counts solely for the purpose of identification but where that evidence also involved other allegations of sexual conduct. 147 Given the importance of the issue of identification for the purposes of the James counts, her Honour thought that the trial judge would need to give a detailed and careful direction on that issue. Any possibility of impermissible prejudice could be addressed by the trial judge ensuring that, as part of that direction, the jury was instructed as to the proper and limited use that could be made in the trial of the James counts of the identification evidence from the witnesses in the other complainants' counts. That would not be a particularly difficult task or one that the jury would have much difficulty in understanding. 148 Her Honour did not determine the State's application in relation to the use of propensity evidence but left it open to be pursued at trial. However, the judge invited the State to reconsider pursuing the application, expressing the view that any direction about the use of the evidence for identification purposes, when allied with an attempt to explain the proper use of propensity evidence, would fall into the category of requiring directions of such complexity that no reasonable jury could follow them. Her Honour expressed the view that to allow the State's application in the form it was before her would give rise to an unacceptable risk of an unfair trial to the accused, that could not be safeguarded by directions. The proposed grounds of appeal 149 The proposed grounds of appeal were: (a) Ground 1: There was a miscarriage of justice occasioned by the fact that the appellant was tried on one Indictment XXX of 20XX containing Counts 1 to 15 relating to [James] with counts 16 to 33 relating to other complainants. -- 42 of 67 -- [2026] WASCA 113 BOND AJA Page 43 (b) Ground 2: The trial judge erred in law when she failed to give any curative directions about inadmissible evidence adduced in the appellant's trial for counts 1 - 15 on Indictment XXX of 20XX. 150 At the hearing of the application before this court, counsel for the appellant conceded that it was not part of her argument to challenge the judge's decision on the pre-trial application. Rather she submitted that the essence of the contention in respect of ground 1 was that there should have come a time during the trial when it should have become apparent to the trial judge that it was impossible to give a direction to the jury which would cure the prejudice caused by the fact that the trial of the two groups of offending had occurred together. The essence of the contention in respect of ground 2 was that the directions which had been given had failed adequately to address the prejudice which existed consequent upon the failure sufficiently to give directions on the cross-admissibility issue. This argument expanded somewhat the literal terms of ground 2 (which relied on the suggested absence of any 'curative' direction, rather than an evaluation of the adequacy of such directions as might have been regarded as 'curative'), but no point was taken by the State that an amendment was required. The State contended that the directions actually given were adequate to cure any actual prejudice. 151 Logically, only ground 2 needs to be addressed. In the event that ground 2 succeeded, it would be unnecessary to address the question whether it was impossible to cure the risk of prejudice, it being sufficient to conclude that the directions which were given had not adequately addressed the relevant risk. If ground 2 failed, then that would be because the directions which were given had adequately addressed the relevant risk and, accordingly, ground 1 would inevitably have failed. 152 The gravamen of the appellant's argument was that the directions given to the jury left open the risk that the jury might have impermissibly reasoned toward guilt in two ways. First, the jury might have taken into account in relation to the James counts evidence which was inadmissible on those counts, that is that the jury might have taken into account more than the evidence which was admissible circumstantial evidence on the question of identification. Second, even though at trial the State did not rely on propensity evidence pursuant to s 31A of the Evidence Act 1906, the jury might nevertheless have engaged in a form of indirect propensity reasoning. -- 43 of 67 -- [2026] WASCA 113 BOND AJA Page 44 The risk of impermissible reasoning by the jury was recognised at the trial 153 After the evidence was concluded and before either counsel addressed, the trial judge raised with counsel for discussion a number of matters which were relevant to the directions which she would ultimately give. 154 Her Honour first raised the question of cross-admissibility. Counsel for the State informed the trial judge that he had made a forensic decision that the State would not seek to rely on s 31A of the Evidence Act 1906 to seek to rely on propensity evidence. He informed the judge that: (a) for each of the complainants the State would simply rely on the evidence in relation to the count; (b) for any one complainant the State would not seek to argue that finding the accused guilty of one count would be something that the jury could take into account in relation to another count in relation to that complainant. 155 Her Honour then raised the question of relationship evidence or evidence of uncharged acts. Counsel for the State accepted there was no such evidence in relation to either James or Hugh, but that there was in relation to Nora and William. There was a discussion identifying that evidence, the details of which are not presently significant. 156 Her Honour then moved on to raise the question of identification evidence. There was a discussion with counsel for the State the effect of which was to list the identification evidence which the State planned to suggest had been elicited from James. Counsel for the State also identified the existence of some other evidence in the form of admissions from the appellant and some supporting evidence from other witnesses. There followed this exchange between the trial judge and counsel for the State: PETRUSA SC DCJ: But the State's case does still rely on the fact that … with the exception of the [redacted] and that material, the State's case really relies on the jury accepting that things that [James] says is accurate about who is the person who abused him. GRINCERI, MR: Correct, yes. PETRUSA SC DCJ: All right. I haven't missed anything, have I? Or yes, no, we did talk about [redacted]. -- 44 of 67 -- [2026] WASCA 113 BOND AJA Page 45 All right. Now, yes, the [redacted], all right. Now, the - other than the fact that [Nora, William and/or Hugh] gave some evidence consistent with some of those more generic features, like being [redacted] and the like - - - GRINCERI, MR: Yes. PETRUSA SC DCJ: - - - the State isn't seeking to rely on, in any way, a suggestion that, well, if they're satisfied that the convictions - that the accused committed any of the offences as against, say, [William], for example, that therefore he is a person who has a sexual interest in boys of a particular age, and therefore that's another circumstance, and he lived in the [redacted] suburbs, and therefore, that's another circumstance the jury could take into account when they're evaluating [James'] description. GRINCERI, MR: No, I don't seek to make that submission. PETRUSA SC DCJ: Okay, all right. So we won't go there. Good. Well, can I ask this question? Do you think it necessary for me to positively direct the jury they can't use the evidence in that way? GRINCERI, MR: Can I think about that a little longer, your Honour? PETRUSA SC DCJ: Yes. Yes, you may. 157 Discussion turned to other matters, before counsel for the State returned to the question raised by her Honour. This exchange followed: GRINCERI, MR: … Can I just say I've been on my feet and been thinking about whether your Honour ought to give a reverse propensity and I think - - - PETRUSA SC DCJ: I would certainly say, look, they can only look at the evidence, they couldn't reason in reverse. GRINCERI, MR: Yes. PETRUSA SC DCJ: That's part of the no cross-admissibility direction. GRINCERI, MR: Yes. PETRUSA SC DCJ: Now the Court of Appeal says, 'What to do, what not to do', let's just make our directions longer. But that's what's we have to do; I will do it. GRINCERI, MR: Yes. -- 45 of 67 -- [2026] WASCA 113 BOND AJA Page 46 PETRUSA SC DCJ: But yes, I will say something to the effect to ensure that you don't reason in a propensity way. Nothing else you can think of at this moment? GRINCERI, MR: Nothing at this moment, your Honour. 158 The trial judge then turned to discussion with the appellant's counsel. Save that in the course of that discussion: (a) the trial judge indicated that she regarded an appropriate circumstantial evidence direction and an appropriate inferences direction to be part of the necessary response to the identification issue; and (b) the appellant's counsel later indicated to the trial judge that, to him, the major argument was always going to be cross-admissibility and propensity and as that was no longer going to be an argument, he did not really need to say a great deal, no part of that discussion needs to be further identified. 159 The following may be inferred from the foregoing: (a) Save for very limited evidence which the State contended it would rely on as part of circumstantial evidence admissible on the question of identification in relation to the James counts, the State did not seek to argue that any other evidence relevant to the other complainants' counts was admissible on the James counts. (b) In particular, the State did not contend that any of the evidence concerning sexual conduct with the other complainants was admissible on the James counts, or that the jury being persuaded of the appellant's guilt on any of the other complainants' counts could be regarded as relevant to the question of his guilt on the James counts. (c) The trial judge had indicated that she proposed to address with the jury the question of cross-admissibility including by giving directions on circumstantial evidence and inferences and in particular by a reverse propensity direction. -- 46 of 67 -- [2026] WASCA 113 BOND AJA Page 47 160 It was evident that both counsel and the trial judge recognised the existence of the same type of risk as had the judge who ruled on the separate trial application. The relevant aspects of the directions given to the jury by the trial judge 161 The directions which the trial judge gave to the jury commenced at 9:32 am on 4 September 2023 and concluded at 4:08 pm that day, when the jury retired to consider its verdict. The directions were recorded in just over 100 pages of transcript. I here focus only on the parts of the lengthy directions which are relevant to the assessment of appeal ground 2. 162 At an early stage in the directions, the trial judge specifically directed the jury concerning the drawing of inferences, making the following points: (a) The jury could use a witness's evidence to draw conclusions or inferences from facts which have been established to their satisfaction. An inference is simply a logical deduction from a fact or a set of facts. (b) When drawing inferences the jury should not consider facts in isolation, but should consider them as a whole. (c) Once the jury had decided what evidence they accepted, they should look at it as a whole and ask themselves what was the only reasonable inference which could be drawn from the evidence. (d) The jury could not draw an inference against the accused unless they were satisfied that it was the only reasonable inference open on the facts they had found. 163 The trial judge then specifically directed the jury that the case before them depended, at least in part, on what was known as circumstantial evidence rather than direct evidence. Her Honour made the following points: (a) Circumstantial evidence was evidence of circumstances which could be relied on not as proving a fact directly, but as pointing to its existence. It differed from direct evidence, which tended to prove a fact directly. -- 47 of 67 -- [2026] WASCA 113 BOND AJA Page 48 (b) Circumstantial evidence was an example of drawing an inference from proven facts, and as she had explained when talking about inferences, when the jury sought to draw an inference against an accused, guilt should not only be a reasonable inference, but it should be the only reasonable inference that could be drawn from the circumstances that the jury found. (c) When the State's case depended wholly or in part on circumstantial evidence the jury were asked to reason in a staged approach. First the State asked them to find certain basic facts established on the evidence. Second the State asked the jury to infer or conclude from a combination of those established facts, that a further fact or facts existed. Ultimately, the State asked the jury to find, based on those basic facts, that the accused was guilty of an offence charged. (d) The trial judge concluded that part of the direction with these observations: So you must consider and weigh, as a whole, all of the facts you find established on the evidence. You must consider from those facts that you find whether you can conclude that the accused is guilty of the offence you are considering. If such a conclusion does not reasonably arise, then the State's circumstantial case fails, because you are not satisfied of the guilt of the accused beyond a reasonable doubt, so it would follow you would find him not guilty. If there is any other reasonable conclusion arising from the facts that is inconsistent with the guilt of the accused, then the circumstantial case fails and you would find the accused not guilty. To satisfy you beyond a reasonable doubt of the accused's guilt of an offence, the State must satisfy you that the inference or conclusion it relies upon is a reasonable one to draw from the facts you find established by the evidence. It must then prove that it's the only reasonable inference or conclusion to be drawn from the facts, viewed as a whole, and so it's only in those circumstances that you may reason a conclusion that the accused is guilty. 164 It may be observed that neither the direction about inferences nor the direction about circumstantial evidence was specifically related to the identification issue concerning the James counts. Nor was any reference made to cross-admissibility or propensity reasoning. -- 48 of 67 -- [2026] WASCA 113 BOND AJA Page 49 165 It may be accepted that immediately after the direction concerning circumstantial evidence the trial judge directed the jury that there were 32 counts which they would need to consider separately. The direction was in these terms: However, it is important that you remember that there are 32 separate charges and that you will need to look at each charge separately and make a decision separately, and what that means is you would look only at the evidence relevant to a particular charge and on the basis of that evidence, decide if the accused is guilty or not guilty. Now, obviously, ladies and gentlemen, there's overlap in the evidence that - and there are obviously decisions that you will make about various matters, about things like where the accused slept when he was at the [house where William and Nora lived], that may be relevant to more than one charge, so what you do is the evidence that's common is when you're looking at a particular charge, you look at the relevant evidence, including the common evidence, you reach a decision, move onto the next charge and if there's relevant evidence, you (indistinct) that along and then look at it in the next charge. All right. So a finding of guilt on one charge doesn't help you to decide whether the accused is guilty or not of another charge because you need to look at them each separately. Look at the evidence relevant to each separately, but having considered all of the evidence, you may find the accused guilty of all the charges or you may find him not guilty of all of the charges, or you may find him guilty of some and not guilty of others. So if you stop and think about - there are lots of possible permutations and combinations of verdicts. All right? It's not a, you know, all in, all out. It can be some in, some out and it can depend, because it depends on the evidence in respect of each charge and what you may find about those. However, there is one thing you must not do. You cannot draw an inference against the accused or make any conclusions against him or be prejudiced against him simply because there is more than one charge. The State has decided to charge him with 32 offences. Your duty in respect of each charge is to consider only the evidence relevant to that charge and on the basis of that evidence, determine whether your verdict is guilty or not guilty. (emphasis added) 166 It may be observed that, although the trial judge told the jury to consider only the evidence relevant to a particular charge, her Honour gave the jury no means by which they could decide what was the evidence which was relevant to the particular charges and how that evidence might be distinguished from that which was not. -- 49 of 67 -- [2026] WASCA 113 BOND AJA Page 50 Compounding the difficulty so created was the acknowledgement in the second paragraph that there was evidence which might be relevant to more than one charge without giving the jury any means to work out what that overlapping evidence might be and how that which overlapped might be distinguished from that which did not. The jury was not given any assistance in determining whether any and if so what evidence adduced from the other complainants was not admissible in relation to the James counts. In substance that meant that the direction did not meaningfully address the cross-admissibility issue or operate to negate propensity reasoning (except in the limited way of reasoning from the basis that there was more than one count). 167 The judge then gave the jury a jury aid44 which addressed the elements of the different types of offences which had been charged which the State was required to prove beyond reasonable doubt. The aid grouped together in an unremarkable way counts from the James counts and the other complainants' counts which alleged the same type of offences. The jury aid identified the elements of those offences and the judge proceeded to explain orally the elements of the offences having regard to the grouping and by reference to some of the evidence. 168 The trial judge did address specifically the question of the identification issue insofar as it was raised in relation to the offence of indecently dealing with a child of or over the age of 13 years and under the age of 16 years, which referenced counts falling within the James counts and also the other complainants' counts, namely counts 1, 4, 5, 9, 11, 19 to 22, 24 to 26, 28, 30 to 33. On that issue the judge directed the jury in these terms: … So the first element, that [the appellant] is the person who did the act alleged. Now, this element is what lawyers call the identity element and it is an element of every single charge, of all charges, has this identity element. All right? So the State must prove beyond a reasonable doubt that it was the accused and not some other person who did the acts that constitute the offence. Now, there are times in trials where the whole issue is about identity. For example, if you think about a bank robbery where someone has gone in with a balaclava over their face and a person is charged, well, the issue may well be, is the person who had the balaclava on who went into the bank the person who's sitting in court on trial? Okay? 44 MFI-V. -- 50 of 67 -- [2026] WASCA 113 BOND AJA Page 51 Now, at other times, of course, that issue is much more straightforward. And in this case, [Nora, William and Hugh] have all said that they know the person who did these things to [them]. They all knew [the appellant] because he was a visitor to [Nora and William's] family home … and they each interacted with him there, and that that person was [the appellant]. Okay? So if these things did in fact happen to any of them, then there is no evidence that anyone other than the accused person is responsible. So it's unlikely that this element will cause you any issues when you're dealing with the offences relating to them. Okay? But ultimately, of course, that's something you have to decide. That, however, is not the case in respect of the charges involving [James]. All right? It is very much in issue whether the person that [James] met online and with whom he subsequently engaged and referred to as [redacted] is the accused. All right? 169 So far as it went that direction could not be criticised. However, it did not operate to improve the likelihood that the jury might not have their course of reasoning in relation to the James counts affected by reference to inadmissible evidence from the other complainants' counts. 170 Having addressed the requisite elements for each of the groups of offences, and against the background of the fact that the addresses by counsel for the State and counsel for the appellant strongly joined issue on the reliability and credibility of each of the complainants, the trial judge then identified for the jury the main issues in dispute in these terms: All right. So ladies and gentlemen, now that you know the elements of the offences, and having heard the evidence in this case, it will be likely, very clear to you, that in relation to the charges involving [James] - in other words, in relation to counts 1 to 15, there are really two main issues in dispute. First is this. Are you satisfied beyond a reasonable doubt that the acts the subject of each charge happened? And (2) if so, are you satisfied beyond a reasonable doubt that the accused was the person who did them? Okay. In relation to the remaining charges, the central issue in respect of each of them is, are you satisfied beyond a reasonable doubt that the accused did the acts the subject of the charges? Okay. And in relation to [Nora], bear in mind they have to have occurred when she's under 16. Okay. What this means, ladies and gentlemen, is that you will need to accept that [James] and/or [William] and/or [Nora] and/or [Hugh] are witnesses of the truth, because theirs is the only evidence that any of -- 51 of 67 -- [2026] WASCA 113 BOND AJA Page 52 these acts happened. The position is that you must be satisfied beyond a reasonable doubt about the truthfulness, accuracy and reliability of their evidence about the act before you could convict the accused of any charge. Given how important their evidence is and given the seriousness of the allegations, you will need to scrutinise their evidence with special care. 171 After having addressed general considerations in relation to the way in which the jury should proceed to assess the evidence given before them, the judge returned to the point made in the previous paragraph, explaining that each of the complainants were, in effect, the only witnesses who could say that the relevant events happened and accordingly the State was asking the jury to accept each of the complainants as witnesses of truth. The judge directed the jury that they must be satisfied beyond reasonable doubt of the truthfulness, accuracy and reliability of the evidence of the four complainants in relation to the charges involving each of them before they could convict the accused of any charge. The judge directed the jury that they must scrutinise each of the complainants' evidence with special care and identified a number of factors sounding on that question, mentioning the fallibility of human memory; the passage of time since the events had happened; the circumstances of each complainant generally, including their age; and the circumstances of each offence. 172 No particular distinction was drawn as between the James counts and the other complainants' counts. Nor was any mention made about cross-admissibility. Rather the trial judge observed: So when you consider their evidence, you must then bear in mind all of the matters that might have an impact on the reliability of the evidence of each of them. 173 To my mind this observation let the jury consider at large anything in the evidence at trial which the jury might think had an impact on the reliability of James' evidence. 174 The judge addressed the forensic disadvantages which delay had caused the appellant in some detail, but which it is not necessary to record. 175 The judge then concluded that section of her directions with this warning: … This direction is given to you because of the real risk of a miscarriage of justice which arises from convicting on [James] and/or [William] and/or [Nora] and/or [Hugh's] evidence alone. -- 52 of 67 -- [2026] WASCA 113 BOND AJA Page 53 You are entitled to act on [James] and/or [William] and/or [Nora] and/or [Hugh's] evidence alone if you are satisfied of its truth, accuracy and reliability, but it would be unsafe to convict the accused on their evidence alone unless, having looked at the evidence carefully, having considered the factors I have mentioned and taking full account of this warning that I am giving you, you are satisfied beyond a reasonable doubt about its truth and its accuracy, so putting this direction in very simple terms, you must not act on the evidence of [James] and/or [William] and/or [Nora] and/or [Hugh] without first giving careful heed to the warning that I've just given you, but if you give it careful heed, you scrutinise it carefully and you are satisfied beyond a reasonable doubt of it, you are entitled to act on it. Okay? 176 The judge then moved on to the evidence in the case. However her Honour introduced that section with the following remarks: So members of the jury, I'm now going to move to the evidence in this case. Before I do that, I want to again make this point very clearly, the fact that I do touch upon some of the evidence doesn't mean that the rest of the evidence is unimportant. You have had the benefit of seeing and hearing all of the evidence for yourselves and it is all there for you to take into account. I am not seeking to emphasise any particular aspect of the evidence as more important to any other aspect by drawing your attention to some parts of the evidence. It is for you to decide what is significant in the evidence. But as we go through this exercise, I will need to give you some directions of law about certain pieces of evidence and you need to accept what I say about these things. (emphasis added) 177 It may be observed that the apparent effect of that introduction was to invite the jury generally to take all of the evidence into account and to judge for themselves what was significant in the evidence, unless the judge gave a specific direction to the contrary in the course of the discussion of the evidence. 178 The judge reminded the jury that James was the first of the complainants to initiate contact with police and that it was whilst investigating his complaint that the police contacted Nora, and this led to her complaint, and then subsequently complaints from William and Hugh. That meant the charges involving James were laid first and they in fact appeared first on the indictment. The judge then explained that the events involving Nora happened first in time and then as a result of her relationship with the appellant, the incidents involving William and Hugh occurred, and then the matters involving James happened in a point in time after that. Accordingly, the trial judge proposed to go through the evidence roughly in a more chronological order. -- 53 of 67 -- [2026] WASCA 113 BOND AJA Page 54 179 The trial judge then proceeded to do so, summarising the State's case and the defence case for each of the complainants by reference to the evidence. It is not necessary to summarise the detail of those directions. However it is necessary to identify whether and, if so, the extent to which the judge directed the jury in terms which might have identified that the evidence so summarised might not have been capable of being taken into account in relation to the James counts. 180 As to Nora, the judge gave a specific direction concerning the other occasions when sexual things were said to have happened between her and the appellant, both before and after she turned 16, but which were not the subject of any charge and how the jury might use this when assessing her evidence about the charges. After the judge identified the evidence the judge directed the jury: (a) First, the State led the evidence so as to give a more complete picture of the physical relationship between Nora and the accused, and to explain the context in which the charged acts occurred. (b) Second, the evidence might also explain why Nora behaved as she did: she was romantically interested in the accused, and they ultimately started and had a relationship for this period of 18 to 20 months. (c) Third, the evidence explained why the accused would act sexually towards Nora: she was romantically interested in him, and he interested in her. (d) The jury could use the evidence for the purpose of understanding those matters, if they accepted it. It might also help them in assessing her credibility. (e) The judge then directed the jury on how they could not use the evidence, stating: Now, there is a direction of law that I need to give you about how you cannot use that evidence of this other sexual conduct if you accept it occurred. You cannot use the evidence of the other sexual conduct that occurred before [Nora] turned 16 in substitution of evidence for the two charged acts. You should not reason simply because you find that there were other occasions that the sexual activity occurred that [the -- 54 of 67 -- [2026] WASCA 113 BOND AJA Page 55 appellant], therefore, must have committed the offences with which he is charged. You should also not reason that just because you find that the accused did act in a sexual way towards [Nora] on another occasion or occasions before she turned 16 - or, in fact, after she turned 16 - that he is the type of person likely to have committed the two offences involving [Nora] or, in fact, any of the other charged offences. None of this evidence of this other sexual conduct involving [Nora] proves in itself the two charges on the indictment before you or any of the charges involving the other complainants, that evidence was only led for the reasons that I have already outlined. (emphasis added) 181 It may be observed that the emphasised portion was an anti-propensity direction of sorts. But it was given in the summary related to Nora, and it related only to the uncharged acts involving Nora and not the charged acts involving Nora. It did say that the uncharged acts against Nora could not be used to reason that the appellant was the type of person likely to have committed the charged acts involving Nora or 'any of the other charged acts'. However, the direction did not go so far as stating that any finding made of guilt in relation to the charged acts involving Nora could not be used to justify propensity reasoning in relation to any of the other charged acts involving James. 182 In a similar way the judge turned to the counts involving William and those involving Hugh. In relation to the counts involving William the judge identified the evidence that the jury had heard in which William had said that there were other occasions at which the appellant had abused him but which were not the subject of any of the counts. The trial judge explained the State's purposes in adducing that evidence in a way similar to the way she had in relation to Nora. The trial judge then directed the jury on how they could not use that evidence, stating: As with the other conduct evidence involving [Nora], however, you cannot use the evidence of this other sexual conduct in substitution for each of the charged acts. You should not reason, simply because you find that there were other occasions that the accused sexually abused [William], that he therefore must have committed the offences charged. You should not reason that, just because you find that the accused did act in a sexual way towards [William] on another occasion or occasions, he was the type of person likely to have committed the charged offences involving [William] or, in fact, of any of the charged offences. -- 55 of 67 -- [2026] WASCA 113 BOND AJA Page 56 None of this evidence of this other sexual conduct involving [William] proves in itself the charges on the indictment relating to [William] or any other charges involving the other complainants, the evidence was only led for the reasons I've outlined. Ultimately, what you have to decide is, on the whole of the evidence you accept, whether or not the State established beyond a reasonable doubt that the accused committed the specific acts, and that involves you accepting [William's] evidence about the acts. 183 As I observed in relation to the similar direction given in relation to the counts involving Nora, this direction was an anti-propensity direction of sorts. But it was given in the summary related to William, and it related only to the uncharged acts involving William and not the charged acts involving William. It did say that the uncharged acts against William could not be used to reason that the appellant was the type of person likely to have committed the charged acts involving William or 'other charges involving the other complainants'. However, the direction did not go so far as stating that any finding made of guilt in relation to the charged acts involving William could not be used to justify propensity reasoning in relation to any of the other charged acts involving James. 184 The trial judge moved on to the counts involving James. The judge explained how the counts resolved into the events which occurred during five discrete incidents and proceeded to summarise James' evidence concerning those incidents. Having done so the judge reminded the jury that the principal issue in respect of each of the charges relating to James was whether the jury was satisfied beyond a reasonable doubt that the person who did these things was the appellant. In this regard, the trial judge directed the jury first: Now, [James] is, of course, the only person who has seen and interacted with the man who he says did these things to him. The State says that when you consider all of the evidence given by [James] about what he saw and learnt of his abuser over time, together and in the context of the whole of the evidence, the only reasonable inference open is that the accused was that person, was his abuser. So the State say or submit that you would look at the combined effect of the evidence of what [James] describes about his abuser, what the other evidence tells you about the accused. (emphasis added) 185 I observe that in the context of what preceded it, unless it was modified by some other direction by the trial judge as to the law, that opening remark invited the jury to take into account on the question of -- 56 of 67 -- [2026] WASCA 113 BOND AJA Page 57 identification the evidence of James but in the context of all of the other evidence in the case, including what the other evidence told the jury about the accused. That impression would have been reinforced by the following four matters. 186 First, the judge summarised the evidence which the State had elicited from James in support of the identification issue: [Redacted] 187 Second the judge then noted that the State had submitted that other matters were relevant: [Redacted] 188 Third, the trial judge characterised the case in this way: So the State submits to you that when you consider all of the evidence given by [James] about what he saw and learnt of his abuser over time, together with what you know about the accused in the context of the whole of the evidence, the only reasonable inference open is that the accused was that person. (emphasis added) 189 I interpolate that although it was only in the last paragraph of the passage at [187] above in which the judge made specific reference to particular evidence from Hugh and William, the directions did not limit the consideration of what the jury knew about the accused in the context of the whole of the evidence to that particular evidence. Indeed, given the sexual context of that evidence, the discussion would be likely to lead to reasoning which considered the whole of whatever the jury found about the appellant's conduct in relation to Hugh and William. 190 Fourth, after the judge had summarised the State's case and the appellant's case and before turning to some miscellaneous reminders to the jury as to other matters raised by counsel the judge directed: And in relation to the charges involving [James], not only will you have to be satisfied of this [i.e. satisfied beyond reasonable doubt that James' evidence in relation to the acts alleged in the charge were truthful, accurate and reliable], but also that the only reasonable inference or conclusion that can be drawn from the consideration of all of the facts you find established, viewed as a whole, is that the accused is the person who did this and is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with that conclusion, that the accused was the person who abused [James], then the State will not have proved its case. (emphasis added) -- 57 of 67 -- [2026] WASCA 113 BOND AJA Page 58 191 Of course what the jury knew about the appellant in the context of the whole of the evidence, and based on a consideration of all of the facts the jury found established, would necessarily have been informed by what they concluded about whether the appellant had, in the chronological period before the alleged offending against James, engaged in the offending against young males which William and Hugh had each described. 192 There was no other subsequent direction which was relevant to the consideration of appeal ground 2. There was no direction which otherwise addressed the cross-admissibility or anti-propensity issues. Consideration of appeal ground 2 193 The first necessary step for an appeal advanced in reliance on the second limb of the common form appeal provision45 is that of identification that there has been a decision on a question of law. Having regard to the discussion by Gleeson, Jagot and Beech-Jones JJ in MDP v The King46 a direction to the jury as to the use they can make of the evidence where there is a distinction to be drawn on the question of cross-admissibility probably should be so regarded. But if it was not to be so regarded, the inadequacy would be assessed under the third limb. In this case the distinction does not matter because the test for materiality is the same, namely whether the appellant can establish that the wrong decision on a question of law (second limb) or the error or irregularity (third limb) could realistically have affected the reasoning of the jury to the verdict of guilty that was returned in the trial that occurred.47 194 In this case the trial judge positively directed the jury that in relation to the James counts they should only take into account the evidence which was relevant to those counts. However the trial judge did not identify which evidence the jury should regard as encompassed by that direction and which evidence they should regard as effectively excluded by that direction. And it is absolutely clear that there was evidence which should have been identified for the jury as evidence which they could not take into account as evidence relevant to the James counts. 45 As, in Western Australia, found in s 30(3)(b) of the Criminal Appeals Act 2004. 46 MDP v The King [2025] HCA 24; (2025) 99 ALJR 969 [99] - [102]. 47 As to the second limb see MDP v The King [3] (Gageler CJ); [33] (Gordon & Steward JJ); [106] - [107] (Gleeson, Jagot & Beech-Jones JJ); and [44], [46] (Edelman J). As to the third limb, see Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 [12]. -- 58 of 67 -- [2026] WASCA 113 BOND AJA Page 59 195 Moreover, the difficulty on which the appellant bases his case in this court derives from the fact that, save for the directions concerning uncharged acts which were given in relation to the Nora counts and the Williams counts, there was nothing which modified the various directions to the jury that inferences were to be drawn from all of the evidence, and it was for them to decide the significance of the evidence. That left open the possibility that the jury might consider significant in determining the issues arising on the James counts the fact that the evidence admissible on the William and Hugh counts demonstrated the appellant's sexual interest in underage males. There was a very real risk of propensity reasoning in a case in which the State had made clear that it was not relying on that course. And that reasoning could be used generally to support the jury's assessment of their conclusion as to the likely reliability of the evidence of James on identification of the appellant as his abuser. 196 The directions neither adequately addressed the cross-admissibility issues nor the anti-propensity issues. The risk of impermissible reasoning so created was obvious and had been recognised by the judge hearing the pre-trial applications and by both counsel and the trial judge at the trial. 197 In this case it was necessary for the trial judge to direct the jury: (a) In the way contemplated by the judge who heard the pre-trial applications: (i) by identifying which parts of the evidence led in relation to the other complainants' counts was admissible on the James counts and which parts of that evidence was inadmissible on the James counts; and (ii) by directing the jury that they could not take the inadmissible evidence into account at all; and (b) by giving an appropriate anti-propensity direction which was not limited merely to sexual conduct concerning Nora and William which had not been the subject of charges. 198 Neither counsel raised any concerns on either of those points at the conclusion of the trial judge's directions or sought any relevant re-directions. However, if this case is to be analysed as a second limb case, it is irrelevant that the conduct of counsel caused or contributed to -- 59 of 67 -- [2026] WASCA 113 BOND AJA Page 60 the trial judge's wrong decision on a question of law.48 If this case is to be analysed as a third limb case, then I would not regard the appellant as being bound by his counsel's conduct because there was no good forensic reason why his counsel would not have sought the appropriate directions. 199 I find materiality is established. The appellant would succeed in making good appeal ground 2. 200 For completeness, I record that in the State's written submissions before this court the State contended that the court could dismiss the appeal by application of the proviso. In my view that course is not open when the issue of miscarriage concerns an issue which affects the jury's assessment of the credibility and reliability of the principal witness in the James counts, namely James himself. To my mind it is obvious that the failure to give directions of the nature of those to which I have referred permitted a course of reasoning which would have enabled the jury more readily to accept the reliability of James' evidence which identified the appellant as his abuser, they having accepted evidence inadmissible on the James counts that the appellant had committed the alleged sexual offences against William and Hugh and never been told they could not take that evidence into account on the James counts. In Orreal v The Queen49 the High Court explained that there are some cases where the nature of the error identified on appeal is such as will prevent the appellate court from being able to assess whether guilt was proved beyond reasonable doubt and, accordingly, prevent the appellate court from applying the proviso.50 This was such a case. Conclusion 201 Appeal ground 2 succeeds. Consequential orders in relation to sentence 202 In this section of these reasons it is convenient to refer to counts 1 to 6 and 8 to 15 as 'the impugned counts' and to counts 16 to 28 and counts 31, 32 and 33 as 'the remaining counts'. 203 Section 30 of the Criminal Appeals Act applies in the case of an appeal by an offender against a conviction. Relevantly s 30(3) obliges 48 MDP v The King [109] (Gleeson, Jagot & Beech-Jones JJ). 49 Orreal v The Queen [2021] HCA 44; (2021) 274 CLR 630. 50 Orreal v The Queen [20] - [23] (Kiefel CJ & Keane J); [41] - [45] (Gordon, Steward & Gleeson JJ). -- 60 of 67 -- [2026] WASCA 113 BOND AJA Page 61 the Court of Appeal to allow the appeal if in its opinion there was a miscarriage of justice. Subsections 30(5) and (6) then provide: (5) If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must - (a) order a trial or a new trial; or (b) enter a judgment of acquittal of offence A; or (c) if - (i) the offender could have been found guilty of some other offence (offence B) instead of offence A; and (ii) the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B, enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; or (d) if the court is satisfied that the offender should have been found not guilty of offence A on account of mental impairment - enter a judgment of acquittal of offence A on account of mental impairment and deal with the offender under the Criminal Law (Mental Impairment) Act 2023; or (e) if the offender could have been found guilty of some other offence (offence B) instead of offence A and the court is satisfied - (i) that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender did the acts or made the omissions that constitute offence B; and (ii) that the offender should have been found not guilty of offence B on account of mental impairment, enter a judgment of acquittal of offence B on account of mental impairment and deal with the offender under the Criminal Law (Mental Impairment) Act 2023. -- 61 of 67 -- [2026] WASCA 113 BOND AJA Page 62 (6) If the Court of Appeal enters a judgment of acquittal of offence A or enters a judgment of conviction of offence B, it may vary any sentence - (a) that was imposed for an offence other than offence A at or after the time when the offender was sentenced for offence A; and (b) that took into account the sentence for offence A. 204 In the present circumstances, the consequence of this court being persuaded that the appeal should succeed is, as is reflected in the orders sought by the appellant's written case, that this court must set aside the convictions in respect of the impugned counts and order a new trial of those counts pursuant to s 30(5)(a). None of the other options specified in s 30(5) is applicable. 205 It is a curiosity that there is no express obligation to set aside the sentences imposed in relation to the convictions set aside, but there can be no doubt that the court is so empowered and should do so. First, a court exercising jurisdiction or powers conferred by statute 'has powers expressly or by implication conferred by the legislation which governs it' and '[t]his is a matter of statutory construction'; it also has 'in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred'.51 Whether as an implication of the express power to set aside convictions and order new trials or as a necessary incident of that express power, this court must be able to set aside the sentences imposed in respect of convictions which it has set aside. 206 But if the court exercises that power, what happens in relation to the sentences which were imposed in relation to the remaining counts? 207 The sentences imposed in relation to the remaining counts were imposed in a way which took account the convictions of the impugned counts and the sentences imposed in relation to them. If this court has determined that the convictions for the impugned counts should be set aside, it would necessarily follow that the sentencing discretion on the remaining counts took into account considerations which must now be 51 DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 [25] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ); Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38 [30] (Gummow, Hayne, Heydon, Crennan & Kiefel JJ); Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 [50], [51] (Gaudron, Gummow & Callinan JJ). To similar effect see the observations of this court in Cooper v Sinnathamby (No 1) [2006] WASCA 82 [58] - [59]. -- 62 of 67 -- [2026] WASCA 113 BOND AJA Page 63 regarded as materially irrelevant considerations. That would establish House v The King52 error in the exercise of the sentencing discretion. 208 A power to take account of the consequential impact on the sentences imposed for the remaining counts is found in s 41(2) of the Criminal Appeals Act, which provides: (2) If under this Act an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence - (a) that was imposed at or after the time when sentence A was imposed; and (b) that took into account sentence A. 209 In the present circumstances, the text 'sentence A' would encompass the sentences imposed in relation to the impugned counts. Section 41(2) would be enlivened by the orders setting aside the sentences for those counts, consequent upon setting aside the convictions and ordering a new trial of those counts. Therefore s 41(2) would confer on this court jurisdiction to vary or set aside the sentences imposed in relation to the remaining counts because those sentences were imposed at the same time as the sentences within sentence A and took them into account. 210 A question arises whether this court would be obliged itself to re-sentence the appellant or whether this court could send the sentencing exercise back to the sentencing judge who imposed the sentences originally so that her Honour could deal with them further in light of the knowledge that the convictions and sentences imposed in relation to the impugned counts had been set aside and she would be re-sentencing on the basis that the appellant had been convicted only in relation to the remaining counts. 211 Where the Court of Appeal allows a sentence appeal by an offender under s 23 or by a prosecutor under s 24(1) of the Criminal Appeals Act, s 31(5) of that Act requires the Court of Appeal to set aside the sentence or order and either to impose a new sentence or to send the charge back to the sentencing court. But in this case there has been no sentence appeal either by the appellant or by the prosecutor. 212 Does that mean that there is no power of remitter open to this court in the present circumstances? 52 House v The King [1936] HCA 40; (1936) 55 CLR 499. -- 63 of 67 -- [2026] WASCA 113 BOND AJA Page 64 213 At the hearing of the present application this court ordered further submissions from the appellant and the respondent in relation to resentencing on the remaining counts in the event that this court set aside the convictions and sentences on the impugned counts. 214 The respondent submitted that it could not identify any power for this court to remit. It submitted that: … [I]f the appeal is allowed and the convictions relating to [James] set aside, the appropriate remedy would be for the State to commence an urgent appeal against sentence in respect of the remaining counts alleging that, as a result of the setting aside of some of the convictions comprising the total effective sentence, the total effective sentence does not properly reflect the overall criminality of the [appellant's] offending. [The appellant] could then be re-sentenced appropriately. 215 On the other hand, the appellant submitted that: To remit the matter back to the court below would be exercising a power relating to procedure. That the [Criminal Appeals Act] is an act relating to criminal appeals and yet includes within it the power under section 40 (relating to the Court's general powers) the ability under section 40(1) - to exercise any power that the Supreme Court may exercise in a civil case is deliberate and reflective of its legislative history. It brings to bear section 17(2)(a), (3) and (6) of the Supreme Court Act 1935 (WA) which enables the transfer of a matter to a lower court's jurisdiction. 216 The respondent's submission would have the advantage of following a procedural course which would ultimately admit of this court being able to avail itself of the express power of remitter conferred on the court by s 31(5) of the Criminal Appeals Act. However, for the following reasons I think the appellant's submission reflects the better view of the court's powers, although perhaps not quite for the reasons submitted by the appellant. 217 First, as earlier mentioned, a court exercising jurisdiction or powers conferred by statute 'has powers expressly or by implication conferred by the legislation which governs it' and '[t]his is a matter of statutory construction'; it also has 'in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred'. Accordingly, the appellant is right to draw attention to the fact that s 40(1)(l) of the Criminal Appeals Act confers on this court for the purposes of dealing with the appellant's appeal, the power to 'exercise any power that the Supreme Court may exercise in a civil case.' The appellant points to the powers of the Supreme Court under -- 64 of 67 -- [2026] WASCA 113 BOND AJA Page 65 s 17(2)(a), (3) and (6) of the Supreme Court Act 1935 (WA). Those powers are powers to transfer the entirety of an action or matter to a lower court. I doubt whether remitting the task of re-sentencing in respect of the remaining counts could properly be so regarded. However, as this court observed in BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers53 'it is a normal and usual incident of appellate jurisdiction that an appellate court has power to remit matters to a decision-maker at first instance, where appropriate'. In the present circumstances, it would be the consequence of the appellant's having successfully demonstrated a right to the remedy of a new trial for the impugned counts, that the appellant has also demonstrated that the sentencing discretion must now be taken to have miscarried for the remaining counts. To my mind, the procedural response of remitter is the most effective way to reconsider what should be the impact on the exercise of the sentencing discretion for the remaining counts, and that process may be regarded a normal and usual incident of the appellate jurisdiction being exercised by this court. 218 Second, there is another avenue to achieve the same outcome. I observe: (a) The general jurisdiction of the Supreme Court is set out in s 16 of the Supreme Court Act. Pursuant to s 21(3) of that Act: Any jurisdiction, whether original or appellate, which is conferred on or vested in the Court, or any one or more of the judges thereof sitting in court or chambers, or elsewhere when acting as judges, or a judge, after the commencement of this Act (whether by statute or otherwise), shall (except as otherwise provided by any such statute) be exercised (so far as regards procedure and practice) in the manner provided by this Act and the rules of court; or if no provision, or no appropriate provision, as to the exercise of any such jurisdiction is contained in this Act or in the rules of court, then such jurisdiction shall be exercised in such form, mode, and manner as the Court or a judge may from time to time direct.' (b) For reasons already advanced, s 41(2) of the Criminal Appeals Act undoubtedly confers on this court jurisdiction to vary the sentences imposed in respect of the remaining counts, because those sentences took into account the sentences imposed in relation to the impugned counts. If there had been an appeal 53 BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2006] WASCA 49 (S); (2006) 151 IR 389 [15]. -- 65 of 67 -- [2026] WASCA 113 BOND AJA Page 66 founded on that contention, then, as the respondent has submitted, s 31(5) of the Criminal Appeals Act would have conferred an explicit power of remitter to bring about the appropriate variation to the sentences. Section 41(2) has not made express provision as to the exercise of the jurisdiction to vary. There is no reason why the powers under s 41(2) should be narrower than those which are conferred by s 31(5). (c) Section 21(3) of the Supreme Court Act is a sufficient source of power to enable this court to conclude that there is no appropriate provision as to the exercise of its jurisdiction to vary the sentences in respect of the remaining counts and to direct that the jurisdiction to make the appropriate variation to those sentences be exercised by this court setting aside the sentences for those counts and remitting the counts to the original sentencing judge for re-sentencing. 219 I conclude that, in either of the ways just mentioned, the clumsy solution of adjourning the variation of the sentences for the remaining counts to enable the respondent to lodge an appeal which would then expressly empower remitter can be avoided and the desirable outcome of remitter can be achieved. Conclusion 220 I would make the following orders: 1. The application for an extension of the time within which to appeal is granted. 2. The appellant has leave to appeal on ground 2. 3. The appeal is allowed. 4. The convictions for counts 1 to 6 and 8 to 15 on IND XXX of 20XX and the sentences imposed in respect of those counts are set aside and a new trial of those counts is ordered. 5. The sentences imposed in respect of counts 16 to 28 and counts 31, 32 and 33 on IND XXX of 20XX are set aside and those counts are sent back to the sentencing court for resentencing. -- 66 of 67 -- [2026] WASCA 113 BOND AJA Page 67 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CI Associate to the Hon Justice Vaughan 20 AUGUST 2026 -- 67 of 67 --