KHB v The State of Western Australia [2026] WASCA 22 was an appeal to the Court of Appeal (Thomson P, Archer JA, Sweeney JA) from convictions in the District Court on seven counts: six counts of indecently dealing with or sexually penetrating his stepdaughters, contrary to the Criminal Code (WA) (the Code), and one count of assault causing bodily harm in circumstances of aggravation, contrary to s 317(1) of the Code.
Relevantly, the prosecutor had commented, in her closing address, on the accused’s failure to give evidence. The Court unanimously allowed the appeal on two grounds and ordered a retrial. In so doing, it held that s 8(1)(c) of the Evidence Act 1906 (WA) (Evidence Act) imposes an absolute prohibition on any such comment.
A direction on the accused’s right to silence did not remedy the sting (that the accused had hidden behind his right to silence while adducing evidence from a witness whom the prosecutor characterised as willing to lie for him) conveyed by such a comment. The State also conceded that the circumstance of aggravation in count 7 could not have been established on the evidence adduced at trial, the enabling provision having come into operation only partway through the pleaded date range. The Court held both concessions were properly made.
Facts
The accused was tried in the District Court (Burrows DCJ) on seven counts of offending against his two stepdaughters. He was convicted on each count and sentenced to eight years’ imprisonment. He did not give evidence at trial but called his wife to give evidence in his defence. In her closing address, the prosecutor attacked the wife’s credibility and sought to have her evidence put to one side. She suggested that the wife was prepared to lie for the accused and stated that the latter had chosen to remain silent, but that this could not at law strengthen the State case:
“The fact that his wife is prepared to lie for him and he has chosen to remain silent cannot at law strengthen the State case in any way.”
Issues on appeal
Three grounds of appeal were pressed. Two are the subject of this note: prosecution comment on the accused’s failure to give evidence; and failure to establish that count 7 fell within the operative period of the alleged circumstance of aggravation. Both grounds were established: ground 1 at [24]; ground 3 at [27]. The Court dismissed the application for leave on ground 2 as unnecessary once the appeal was allowed on the other grounds: at [28]–[29].
Reasons
1. The nature of the s 8(1)(c) prohibition
Section 8(1)(c) of the Evidence Act is an absolute prohibition on any comment by the prosecution on the accused’s failure to give evidence (“the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution”). This includes comments that appear to be favourable to the accused. In AJE v The State of Western Australia [2012] WASCA 185, Mazza JA and Beech J held that s 8(1)(c) extends to implied as well as express comment: at [30]. King CJ held in Siebel v The Queen (1992) 57 SASR 558 that the prohibition covers any comment, whether fair or unfair, balanced or unbalanced, favourable or unfavourable: at 562. The policy of the prohibition is to vest the decision about comment on the accused’s silence exclusively in the trial judge: at 562 per King CJ. Mazza JA and Beech J approved both propositions in AJE: at [37].
The prosecutor’s comment in this case was obviously in breach (at [13]). The appellant identified the compound nature of that statement as a sting (namely, that the accused had hidden behind his right to silence while adducing evidence from a witness whom the prosecutor characterised as willing to lie for him). The Court accepted that characterisation: at [15]. Notwithstanding that the comment was framed as a proposition of law, it was likely to prejudice the jury against the accused for exercising that right: at [16]. The accused could not answer the implication without abandoning the very right to which the comment related.
2. The insufficiency of directions in remedying s 8(1)(c) breaches
Where the prohibition is breached and the accused is convicted, an appeal against conviction will ordinarily succeed. A direction may address the breach, but only in rare cases. The legislature conferred a right to a trial free of the prohibited comment, and an infringement of that right cannot be overlooked lightly: at [14], applying AJE at [37] per Mazza JA, Beech J.
The trial judge gave a standard direction on the accused’s right to silence. But it did not engage with the specific unfairness of the prosecutor’s comment or the sting in it: at [19]. In any event, the Court doubted that any direction of sufficient weight could have been framed without also reinforcing the comment: at [17]. The judge later summarised the State’s case against the wife’s credibility. That passage may have reinforced the impugned comment: at [20]–[21].
The State abandoned reliance on the proviso, accepting that any conclusion of guilt necessarily depended on an assessment of witness credibility. The breach had infected that assessment: at [23].
3. The circumstance of aggravation: operative period and retrial indictment
Count 7 alleged assault causing bodily harm, the alleged circumstance of aggravation being a family and domestic relationship between the accused and the victim. The relevant provision of the Code did not take effect until 1 December 2004. The pleaded date range for count 7 straddled that date, extending from February 2003 to December 2004. The evidence at trial did not establish that the offending fell within the operative period: at [27]. The State cannot remedy that evidentiary deficiency at the retrial. The circumstance of aggravation was accordingly excluded from the retrial indictment: at [27].
Implications
The principal implications of the decision are threefold.
First, s 8(1)(c) of the Evidence Act is an absolute prohibition on any comment by the prosecution on the accused’s failure to give evidence, including comment that appears to favour the accused. When the Evidence Act 2025 (WA) takes effect, s 30 will replace s 8(1)(c), preserving that s 8(1)(c) prohibition while expressly providing that the trial judge and parties other than the prosecutor (namely the accused) may comment on the accused’s silence. Section 30(2) adds a qualification: no permitted comment may suggest the accused did not give evidence because the accused had committed the offence. The sting in the comment in this case would have breached that new s 30(2) prohibition.
Secondly, standard directions are unlikely to remedy a prosecution comment that conveys a sting. Practitioners should therefore raise any such breach before the judge charges the jury. The direction must address the specific unfairness of the comment, not merely restate the right to silence. The trial judge’s express power under s 30(1) of the 2025 Act to comment on the accused’s silence will facilitate the remedying of that prejudice or unfairness.
Thirdly, a circumstance of aggravation that rests on a legislative provision cannot be established by conduct falling within a date range that merely straddles the commencement of the enabling provision. The evidence must affirmatively establish that the offending postdated commencement. The State cannot remedy an evidentiary deficiency of that kind at a retrial.
