CDO v The State of Western Australia - [2022] WASCA 58

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CDO -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 58
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   4 FEBRUARY 2022
DELIVERED          :   3 JUNE 2022
FILE NO/S:   CACR 51 of 2021
BETWEEN:   CDO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 52 of 2021
BETWEEN: CDO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
For File No:   CACR 51 of 2021
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BURROWS DCJ
File Number            :   IND 2670 of 2019
For File No:   CACR 52 of 2021
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEWART DCJ
File Number            :   IND 2222 of 2019

Catchwords:

Criminal law - Appeal against conviction - Sexual offending against a child - Indecent dealing with a child under 13 years - Uncharged sexual act - Admissibility of evidence of the uncharged sexual act - Whether trial judge erred in directing jury about the use it could make of the evidence of the uncharged sexual act - Whether real and not remote possibility that the jury might adopt propensity reasoning

Criminal law - Appeal against conviction - Sexual offending against children - Appellant convicted after trial of six counts of sexual offending against three of his biological daughters - Whether trial judge erred in giving a family violence direction pursuant to section 39D of the Evidence Act 1906 (WA) - Statutory interpretation - Whether family violence 'an issue' for purposes of section 39D of the Evidence Act 1906 (WA)

Legislation:

Criminal Code (WA), s 320(4), s 329
Evidence Act 1906 (WA), s 31A, s 37, s 38, s 39, s 39A, s 39D, s 39F
Restraining Orders Act 1997 (WA), s 4, s 5A

Result:

Leave to appeal granted in each appeal
Appeals dismissed

Category: A

Representation:

CACR 51 of 2021

Counsel:

Appellant	:	Ms K Kumar
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Kaminni Kumar
Respondent	:	Director of Public Prosecutions (WA)

CACR 52 of 2021

Counsel:

Appellant	:	Ms K Kumar
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Kaminni Kumar
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Auons v The Queen [2010] VSCA 223
B v The Queen [1992] HCA 68; (1992) 175 CLR 599
BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499
Bounds v The Queen [2006] HCA 39; (2006) 80 ALJR 1380
Cooper v The State of Western Australia [2010] WASCA 190
Dann v The State of Western Australia [2021] WASCA 15
Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1
De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
Hall v Braybrook [1956] HCA 30; (1956) 95 CLR 620
Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 394 ALR 194
Hill v The State of Western Australia [2019] WASCA 209
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
HTN v The State of Western Australia [No 2] [2022] WASCA 51
IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
JEL v The State of Western Australia [2022] WASCA 32
King v The Queen [2003] HCA 42; (2003) 215 CLR 150
La Fontaine v The Queen (1976) 136 CLR 62
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
LNN v The State of Western Australia [2021] WASCA 39
LNV v The State of Western Australia [2019] WASCA 180
Marshall v The State of Western Australia [2007] WASCA 96
Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45
R v AH (1997) 42 NSWLR 702
R v Dolan (1992) 58 SASR 501
R v Dookheea [2017] HCA 36; (2017) 262 CLR 402
R v SBV [2011] QCA 330
R v Turner [1975] 1 QB 834
Rinaldi v The State of Western Australia [2007] WASCA 53
Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610
Seymour v The Queen [2006] NSWCCA 206; (2006) 162 A Crim R 576
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
TSP v The State of Western Australia [2021] WASCA 224
Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Table of Contents

Buss P

Conviction appeal in respect of indictment 2670 of 2019: the State's case at trial

Conviction appeal in respect of indictment 2670 of 2019: the appellant's case at trial

Conviction appeal in respect of indictment 2670 of 2019: the prosecutor's opening address

Conviction appeal in respect of indictment 2670 of 2019: defence counsel's opening statement

Conviction appeal in respect of indictment 2670 of 2019: BTM's evidence in relation to the charged offence

Conviction appeal in respect of indictment 2670 of 2019: BTM's evidence in relation to the other occasion (apart from the charged offence)

Conviction appeal in respect of indictment 2670 of 2019: the prosecutor's closing address

Conviction appeal in respect of indictment 2670 of 2019: the exchanges between the trial judge and counsel

Conviction appeal in respect of indictment 2670 of 2019: the trial judge's summing up

Conviction appeal in respect of indictment 2670 of 2019: the merits of the appeal

Conviction appeal in respect of indictment 2222 of 2019

Mazza & Mitchell JJA

Summary

CACR 51 of 2021: direction about uncharged acts

The charge

The prosecution case

The trial judge's direction

The appellant's submissions on appeal

Disposition of appeal

CACR 52 of 2021: family violence direction

Statutory provisions

Proceedings at trial

Appellant's submissions on appeal

Proper construction of s 39D of the Evidence Act

Disposition of appeal

Orders

CACR 51 of 2021

CACR 52 of 2021

BUSS P:

These are appeals against conviction.
The appellant was charged on indictment 2670 of 2019 with one count which alleged that, on an unknown date between 16 February 2001 and 17 February 2002 at Cooloongup, the appellant indecently dealt with the complainant (BTM), a child under the age of 13 years, by masturbating in her presence, contrary to s 320(4) of the Criminal Code (WA) (the Code).
The appellant pleaded not guilty to the count.
On 29 January 2021, after a trial before Burrows DCJ and a jury, the appellant was convicted as charged.
The appellant was also charged on indictment 2222 of 2019 with seven counts. The complainant in counts 1, 2 and 6 was the appellant's daughter, M. The complainant in counts 3, 4 and 5 was the appellant's daughter, J. The complainant in count 7 was the appellant's daughter, A. All of the complainants were under the age of 16 years.
Count 1 in indictment 2222 of 2019 alleged that, on a date unknown between 31 December 2014 and 1 December 2015 at Rockingham, the appellant encouraged M, a child who he then knew to be his lineal relative, to do an indecent act, namely to touch his penis with her hand, contrary to s 329(5) of the Code.
Count 2 alleged that, on the same date and at the same place as in count 1, the appellant encouraged M, a child who he then knew to be his lineal relative, to engage in sexual behaviour, contrary to s 329(3) of the Code.
Count 3 alleged that, on a date unknown between 13 April 2018 and 30 April 2018 at Orelia, the appellant indecently dealt with J, a child who he then knew to be his lineal relative, by masturbating in her presence, contrary to s 329(4) of the Code.
Count 4 alleged that, on a date unknown between 16 July 2016 and 1 October 2017 at Orelia, the appellant indecently dealt with J, a child who he then knew to be his lineal relative, by masturbating in her presence, contrary to s 329(4) of the Code.
Count 5 alleged that, on the same date and at the same place as in count 4, the appellant encouraged J, a child who he then knew to be his lineal relative, to do an indecent act, namely to allow the appellant to touch her vagina, contrary to s 329(5) of the Code.
Count 6 alleged that, on a date unknown between 24 March 2017 and 1 May 2018 at Calista, the appellant indecently dealt with M, a child who he then knew to be his lineal relative, by masturbating in her presence, contrary to s 329(4) of the Code.
Count 7 alleged that, on the same date and at the same place as in count 6, the appellant indecently dealt with A, a child who he then knew to be his lineal relative, by masturbating in her presence, contrary to s 329(4) of the Code
The appellant pleaded not guilty to all of the counts on indictment 2222 of 2019.
On 3 March 2021, after a trial before Stewart DCJ and a jury, the appellant was convicted of counts 1, 2, 3, 4, 6 and 7. He was acquitted of count 5.
On 30 March 2021, Stewart DCJ imposed a total effective sentence of 2 years 6 months' immediate imprisonment, with parole eligibility, for the six counts on indictment 2222 of 2019 of which the appellant was convicted.
On 14 April 2021, Burrows DCJ imposed a sentence of 6 months' immediate imprisonment, with parole eligibility, for the count on indictment 2670 of 2019 of which the appellant was convicted. Her Honour ordered that the sentence be served cumulatively upon the total effective sentence imposed by Stewart DCJ.
The appellant's overall total effective sentence in respect of both indictments was therefore 3 years' immediate imprisonment with parole eligibility. The start date for the overall total effective sentence was 30 March 2021.
The appellant has appealed against his conviction on the count the subject of indictment 2670 of 2019 on the sole ground that, in essence, Burrows DCJ misdirected the jury as to the use the jury could make of evidence of an uncharged sexual act by the appellant.
The appellant appeals against his convictions on counts 1, 2, 3, 4, 6 and 7 the subject of indictment 2222 of 2019 on the sole ground that Stewart DCJ erred in giving the family violence direction pursuant to s 39D of the Evidence Act 1906 (WA).
On 5 August 2021, I ordered that the appellant's application for leave to appeal in respect of his conviction on indictment 2670 of 2019 be referred to the hearing of the appeal.
On 5 August 2021, I ordered that the appellant's application for an extension of time within which to appeal and his application for leave to appeal in respect of his convictions on indictment 2222 of 2019 be referred to the hearing of the appeal.
As to the appeal in respect of indictment 2670 of 2019, I have a different view from Mazza and Mitchell JJA. I would grant leave to appeal on the sole ground of appeal, allow the appeal, set aside the judgment of conviction and order a new trial.
As to the appeal in respect of indictment 2222 of 2019, I agree with Mazza and Mitchell JJA that the appellant's application for an extension of time within which to appeal should be granted, leave to appeal on the sole ground of appeal should be granted but the appeal should be dismissed.
My reasons are as follows.

Conviction appeal in respect of indictment 2670 of 2019: the State's case at trial

The State's case was, in summary, as follows:
(a)The complainant (BTM) and her sisters stayed regularly with the appellant at his house in Cooloongup on weekends.
(b)BTM's mother usually worked on weekends. Her mother was a friend of the appellant's partner.
(c)A futon, a television and a mattress were in the lounge room of the Cooloongup house. The appellant would sleep on the mattress in the lounge room at night.
(d)The appellant's partner, BTM and the other female children would sleep in a bedroom of the Cooloongup house.
(e)One night, between 16 February 2001 and 17 February 2002, BTM did not sleep in the bedroom with the appellant's partner and the other female children. She slept on the futon in the lounge room.
(f)BTM gave evidence that while she was on the futon, she awoke. BTM rolled over and saw pornography being played on the television. The appellant was on the mattress and was masturbating. When she rolled over, BTM did not say anything to the appellant.
(g)The appellant then said, 'Do you want to play with it?'. BTM assumed that the appellant was referring to his penis. She ignored what the appellant had said and pretended to sleep. BTM did not recall seeing the appellant's face. She saw his penis for about five seconds. BTM then rolled back to her original position on the futon. BTM remained on the futon for a while and then said, 'I need the toilet'. After using the toilet, BTM went to the bedroom where the appellant's partner and the other female children were sleeping.
(h)At the time of the alleged offending BTM was aged 9 years and the appellant was aged 40 or 41.

Conviction appeal in respect of indictment 2670 of 2019: the appellant's case at trial

The appellant's case at trial was that at material times the appellant masturbated while watching pornography on the television in the lounge room of the Cooloongup house.
The appellant did not give evidence at the trial, but he made an admission to that effect in an electronically recorded interview with police. The prosecutor played a DVD of the electronic record of interview at the trial, as part of the State's case, and tendered the DVD (ts 110 ‑ 111).
During the interview the appellant said:
(a)He used to watch pornography (EROI 80).
(b)He would watch pornography on a DVD player or a video (EROI 80).
(c)He watched pornography by himself. He would not watch pornography with anyone else. He would not watch pornography when anyone else was around (EROI 81).
(d)His DVD player and his television were in the lounge room (EROI 81).
(e)If he wanted to watch pornography he could watch pornography when he was by himself and no one else was there (EROI 82).
(f)He would masturbate while he was looking at pornography 'if it was any good' (EROI 86 ‑ 87).
(g)He would never have masturbated while any of the children were in his bed (EROI 89 ‑ 90).
(h)He expressed disbelief about BTM's allegations concerning the charged offence (EROI 91 ‑ 93).
(i)He denied having asked BTM whether she wanted to play with his penis (EROI 102).
(j)No one (apart from him) slept in the lounge room at the Cooloongup house (EROI 104).
(k)He expressed disbelief in relation to BTM's allegations concerning another occasion in the lounge room of a home unit in Rockingham when the appellant had allegedly masturbated in her presence (EROI 105 ‑ 106). He added that BTM's mother will 'get [the children] to say anything' and that the mother was 'a trouble maker' (EROI 106).
(l)The tenor of the appellant's statements during the interview was, relevantly, to the effect that he had never knowingly masturbated in the presence of anyone else.

Conviction appeal in respect of indictment 2670 of 2019: the prosecutor's opening address

The prosecutor told the jury in her opening address that BTM would give evidence about another occasion (apart from the charged offence) when she saw the appellant masturbating in the lounge room of her sister's home unit in Rockingham.
This other occasion allegedly occurred about 2 years after the charged offence when BTM was aged 11 years and the appellant was aged 42 or 43.
The prosecutor said that:
(a)The appellant was also staying at the Rockingham unit.
(b)BTM was reluctant to be around the appellant, but she wanted to see her sister, K.
(c)On the night in question, BTM went to sleep on a futon in the lounge room. During the night she awoke. BTM saw the appellant sitting on the edge of the futon on which she was sleeping. He was watching pornography and masturbating. BTM got up and walked into a bedroom.
The prosecutor then told the jury:
You will hear about this incident not because [the appellant] is charged with respect to this but because the State says that this incident shows that [the appellant] masturbating in the lounge room when [BTM] was present was not a completely isolated incident (ts 39).

Conviction appeal in respect of indictment 2670 of 2019: defence counsel's opening statement

Defence counsel made these comments to the jury in his opening statement:
Let's just remember that just because [the appellant] will say to the police in his interview that he's masturbated and that he's masturbated to pornography, there's nothing wrong with that. Listen to the whole explanation, listen to the circumstances he gives. He'll say to the police, 'Well, yeah, when I'm alone and in my own house' (ts 42).

Conviction appeal in respect of indictment 2670 of 2019: BTM's evidence in relation to the charged offence

At the trial BTM gave evidence in relation to the charged offence that was consistent with the State's case as opened by the prosecutor.

Conviction appeal in respect of indictment 2670 of 2019: BTM's evidence in relation to the other occasion (apart from the charged offence)

At the trial BTM gave evidence about the other occasion (apart from the charged offence) when she awoke at night and saw the appellant masturbating in the lounge room of her sister's home unit in Rockingham.
BTM's evidence in chief was, relevantly as follows:
Where were you on the futon?---The futon was opened up, so I was against the wall on the futon.
When you woke up against the wall on the futon were you facing the wall or were you facing a different direction?---I don't remember.
When you woke up what did you see or hear?---I could hear porn on the TV and – and then I looked and [the appellant] was sitting on the edge of the futon on the side closest to the balcony and he was masturbating.
Was the long end of the futon against the wall or the short end?---The long end.
So you were lying on the – along the long end facing the wall?---Yes.
And was [the appellant] sitting on the short end of the futon or the long end?---The long end.
But not the side that you were on?---No, on the opposite. So my head would have been on one corner and he was sitting on the opposite corner.
And which way was he facing?---Towards the TV.
And could you see what he was doing?---I could just see his arm moving. I couldn't see exactly – you know, I couldn't see his penis or what – you know, but I could just see it moving up – up and down.
So his arm was moving in an up and down motion?---Yes.
And where was the bottom of his arm positioned?---Do you mean his hand or - - -
Yes?---In front of him and I didn't have vision of that.
But you could see ‑ what parts of his arm could you see?---I could see his elbow moving up and down.
And what did it look to you that he was doing?---It looked like he was masturbating.
What did you do after that?---I got up and I went and checked where [R] was which was in her bedroom and then I quickly ran into [K's] room.
Before you left the room did you say anything to him?---No. He didn't see me wake up this time, so I just quickly left as fast as I could (ts 62 ‑ 63).
BTM gave this evidence in cross‑examination:
And you really only see the back of [the appellant] who's sitting at the end of the bed?---Yes.
And was there something on the TV?---Yes.
What?---Porn. What - what was on it?---I don't recall.
But you know it was porn?---Yes.
And you saw the back - or part of [the appellant's] arm?---Yes.
And from all of that, that's it, isn't it?---That's it.
And you decided he was masturbating from that?---I could see his arm moving and what else would you be doing while you're watching pornography?
But you didn't make any sound at that point, did you?---No.
And [the appellant] didn't say anything to you?---No (ts 84 ‑ 85).

Conviction appeal in respect of indictment 2670 of 2019: the prosecutor's closing address

The prosecutor said to the jury in her closing address that the appellant admitted in his electronically recorded interview with police that:
(a)he would watch pornography on the television;
(b)the television was in the lounge room at the Cooloongup house;
(c)the television was in the lounge room at the Rockingham unit; and
(d)he would masturbate to the pornography 'if it was any good' (ts 2).

The prosecutor submitted that the jury could be satisfied that BTM was telling the truth about the appellant masturbating because the appellant admitted that he would masturbate in the lounge rooms (ts 2 ‑ 3).
The prosecutor reminded the jury that BTM had given evidence that 'this happened twice' and her evidence was 'perfectly consistent with what [the appellant] says' (ts 3). The prosecutor said that the appellant 'speaks in generalities in his interview because this wasn't a one‑off, which is exactly what [BTM] says' (ts 3).
The prosecutor then asserted in relation to the Rockingham unit incident:
[BTM] telling you this establishes the context and the background for that offence at Cooloongup. This evidence shows you it was absolutely able to happen. We know it happened, we know how it happened. [The appellant] would masturbate in that lounge room, and [BTM] was in the lounge room when it happened (ts 3). (emphasis added)

Conviction appeal in respect of indictment 2670 of 2019: the exchanges between the trial judge and counsel

Late on the afternoon of 28 January 2021, after the completion of the closing addresses of counsel and before the commencement of the trial judge's summing up, her Honour raised with the prosecutor (in the absence of the jury) the relevance of BTM's evidence about the other occasion at the Rockingham unit and the directions her Honour should give the jury in relation to it.
The following exchange occurred between her Honour and the prosecutor:
McCALLION, MS:    Your Honour, the State doesn't say that the [Rockingham] incident is propensity of the Cooloongup incident, because the probative [force] that [the appellant] may masturbate in the lounge room, which he accepts, still is a neutral point.
BURROWS DCJ:     But you would agree that the jury could only use that evidence if they were satisfied, (a) in respect of [BTM'S] evidence that it occurred, and (b) that [the appellant] was aware she was present.
McCALLION, MS:    Well, that's the difficulty, your Honour. The State doesn't say that he was necessarily aware that she was present at Rockingham. …
BURROWS DCJ:     Well, …you opened on the basis that this wasn't an isolated incident. Now, an isolated incident being that he masturbated in the presence of a child. …
McCALLION, MS:    Yes.
BURROWS DCJ:     [If the appellant's] not aware that a child's present, then it can't be not an isolated incident. You understand what I mean?
McCALLION, MS:    Well, he doesn't necessarily - it could be a reckless masturbation in her presence.
BURROWS DCJ:     But if he's not aware, they would have to accept that she was there before they could use that evidence anyway.
…
BURROWS DCJ:     … I'm struggling as to how they can use that evidence …
…
BURROWS DCJ:     I know how they can't use it.
McCALLION, MS:    Yes. The State's position is that it establishes the fact that he would masturbate in the presence of [a] child.
BURROWS DCJ:     If thus satisfied that he was aware the child was there, based on her evidence. It could only be, because she says, in answer to a question by you:
At no time did you see [the appellant] see you?     --- No.
McCALLION, MS:    Yes.
BURROWS DCJ:     So are you not asking them to infer from the positioning or anything like that? It was quite unclear in the course of the evidence that - - -
McCALLION, MS:    Yes.
BURROWS DCJ:      - - - because she was on the futon, therefore he must have known she was there. He's got his back to her, on my understanding - - -
McCALLION, MS:    Yes.
BURROWS DCJ:      - - - of the evidence. So how is it relationship evidence? …
…
McCALLION, MS:    - - - the State's position is that it's not relationship evidence.
BURROWS DCJ:     Well, why has the evidence been led?
McCALLION, MS:    …the State's position is that it's evidence of the fact that he would masturbate in the lounge room when - - -
BURROWS DCJ:     Well, he's admitted that in his interview.
McCALLION, MS:    Yes.
BURROWS DCJ:     So it takes it no further than that.
McCALLION, MS:     But when there was the presence of a child.
BURROWS DCJ:     As I say.
McCALLION, MS:    We can't establish that he knew she was there at the Rockingham incident.
BURROWS DCJ:     Well, how can it be evidence where there was a presence of a child if there is no evidence that he was aware of the child's presence?
McCALLION, MS:    Because it's not simply that he knew. It's also the fact that he could have done so without considering whether there was a child present, that that was the reckless nature of his behaviour. And in the calling up incident, when he was aware that she was awake, he acted upon that.
BURROWS DCJ:     So at the best, you can say that that evidence demonstrates that - it was led to show that he masturbates in the lounge room?
McCALLION, MS:    When there's a child present. …
BURROWS DCJ:     What do you say I should direct the jury in respect of that evidence and how they can use it and how they can't?
McCALLION, MS:     Because it corroborates the reliability of her evidence with respect to the first count as well, that it wasn't one occasion that he did it, that he would do it when she was there on at least two occasions.
BURROWS DCJ:     I'm struggling with that, Ms McCallion. I'm really struggling with it in light of the way the evidence came out. I understood it in your opening that it was not an isolated incident and I thought there was going to be more evidence led that at least established an awareness or an inference that could be drawn that she was there and that he would know [she] was there because of the position on the couch et cetera et cetera and he must have known because he was sitting on the end of the futon where a child is lying.
McCALLION, MS:    Yes.
BURROWS DCJ:     But it never got to that stage in the course of the trial. Have a think about that one, would you, overnight?
McCALLION, MS:     Yes.
…
BURROWS DCJ:     And I'll hear from you once you have a think about it. The only relevance of that evidence is that it demonstrates that [the appellant] would masturbate, has masturbated in the lounge room if they were to accept the evidence of [BTM] that that is in fact what she saw.
They couldn't use it as any evidence of sexual conduct towards [BTM] in any way or a propensity to act in that manner and they would need to – I'm really - sorry, the more I think about it and the more I elucidate it, I'm struggling to see how they can use it in any way.
McCALLION, MS:    Well, your Honour, the State certainly doesn't intend and I didn't close on it because it's not the State's intention that it’s propensity evidence - - -
BURROWS DCJ:     No.
McCALLION, MS:    - - - of an uncharged act.
BURROWS DCJ:     So what is it?
McCALLION, MS:    It's the context of the behaviour that [the appellant] demonstrated.
BURROWS DCJ:     Solely for context?
McCALLION, MS:    Yes.
BURROWS DCJ:     Yes, all right. I want you to have a think about that one, please, as to how they can and they can't use it.
McCALLION, MS:    Yes.
BURROWS DCJ:     Thank you (ts 146 ‑ 151). (emphasis added)
It is apparent from that exchange, that:
(a)the State conceded that it could not prove that the appellant was aware that BTM was present when the incident at the Rockingham unit allegedly occurred;
(b)the State did not rely upon BTM's evidence about the other occasion at the Rockingham unit as propensity evidence or relationship evidence; and
(c)the State relied upon BTM's evidence about the other occasion at the Rockingham unit 'solely for context'.
It is also apparent from the exchange between the trial judge and the prosecutor that her Honour's provisional view was that there was, at least, a real doubt as to how the jury could use BTM's evidence about the other occasion at the Rockingham unit in the course of deciding whether the State had proved the charged offence.
After the trial was adjourned on 28 January 2021 and before the trial recommenced on 29 January 2021, the prosecutor and defence counsel sent emails to her Honour's associate setting out submissions as to the use the jury could make of BTM's evidence about the other occasion at the Rockingham unit.
The prosecutor said in her email that the State's position was as follows:
The jury can use the evidence of this incident in their assessment of the credibility and reliability of [BTM] i.e. [BTM] says [the appellant] masturbated in the lounge room on more than one occasion, and [the appellant] admits that he masturbated in the lounge room on more than one occasion.
The jury should be directed that they cannot reason that: because [the appellant] masturbated in the lounge room in front of [BTM at the Rockingham unit] means he is guilty of the offence on the Indictment.
The position of the State, as set out in the prosecutor's email, appears to have been that BTM's evidence about the other occasion at the Rockingham unit was relevant to and could be used by the jury in assessing the credibility and reliability of BTM's evidence in relation to the alleged incident at the Cooloongup house (that is, the incident comprising the charged offence).
Defence counsel said, relevantly, in his email:
[I]f the jury find the evidence of [BTM] that she may have seen [the appellant] masturbating at [the Rockingham unit], both credible and reliable; then still that reasoning, must not be used in their consideration of her evidence of what she alleged occurred at [the Cooloongup house].
The position of defence counsel, as set out in his email, appears to have been that even if the jury found that BTM's evidence in relation to the alleged incident at the Rockingham unit was credible and reliable, that evidence was not relevant to and must not be used by the jury in considering whether the jury was satisfied beyond reasonable doubt as to the honesty, accuracy and reliability of BTM's evidence in relation to the charged offence.
When the proceedings recommenced on 29 January 2021, the trial judge told counsel:
Now, counsel, thank you both for your email correspondence in respect to the appropriate direction as to the use the jury can put the [Rockingham unit] evidence. And I've adopted what you’ve both said into my charge.
What I propose to say is this. During the trial, the State led evidence about [BTM] staying at [the Rockingham unit] of [the appellant] and sleeping on the balcony with [R]. [BTM] gave evidence that she awoke on the futon, [the appellant] was sitting on the edge of the futon, masturbating whilst watching porn. Nothing was said. There was no evidence that [the appellant] was aware of her presence. She said he didn't look at her or speak to her. His back was to her. She got up and went to her sister's room.
The State led the evidence about these matters for a very limited purpose. If you find [BTM's] evidence to be accurate and reliable, you can use it in your assessment of the credibility and reliability of [BTM]. I direct you that you can only use the evidence in this limited way. Her evidence was that [the appellant] masturbated in the lounge room on two occasions. [The appellant] admits that he masturbated in the lounge room when he was alone. He, of course, denies ever doing so when [BTM] or anyone else was present.
If you do find the evidence of these matters to be truthful and accurate, you can consider that evidence, along with all the other evidence, to decide whether the State has proved the charges beyond reasonable doubt. On the other hand, if you do not accept the evidence of this matter, then it is likely to influence your assessment of the credibility of [BTM]. So the evidence only has this very limited purpose.
You cannot reason that because [the appellant] masturbated in the lounge room at [the Rockingham unit], if you find he did, that he has committed the offence in the indictment, you cannot use the evidence in substitution for the evidence of the count in the indictment. You should not reason simply because you find that [the appellant] masturbated on another occasion that he therefore committed the offence with which he is being charged. You should also not reason that because [the appellant] masturbated on another occasion that he was the type of person likely to have committed the offence charged.
Ultimately, what you have to decide on the whole of the evidence, which you accept, is whether or not the State has established beyond reasonable doubt that [the appellant] committed this specific act constituting the charge. You cannot deliver a guilty verdict unless, having considered all of the evidence, you are satisfied beyond reasonable doubt that [the appellant] did the specific act the subject of the charge. That depends upon your being satisfied beyond reasonable doubt based on the evidence that the alleged act occurred (ts 156 ‑ 157).
Neither the prosecutor nor defence counsel made any submission to her Honour in relation to the proposed direction (ts 157).

Conviction appeal in respect of indictment 2670 of 2019: the trial judge's summing up

During her summing up the trial judge explained to the jury the elements of the charged offence.
Her Honour told the jury that one of the elements that the State had to prove was that the appellant indecently dealt with BTM.
The trial judge summarised the State's case as follows:
Now, the State alleges on the charge that [the appellant] indecently dealt with [BTM] by knowingly masturbating in her presence, and that is in the lounge room at [the Cooloongup house]. The State case is that [the appellant] knew that [BTM] was present because [the appellant is] alleged to have asked [BTM] if she wanted to play with his penis, if she wanted to put his penis in her hand, or words to that effect (ts 165). (emphasis added)
Her Honour summarised the defence case as follows:
[The appellant] denies masturbating in [BTM's] presence. His evidence or what he told the police was yes, he would masturbate, but [he has] never masturbated in anyone else's presence. He does that alone (ts 165).
It was a factual element of the charged offence that the appellant had knowingly masturbated in BTM's presence in the lounge room at the Cooloongup house. The State was obliged to prove that factual element beyond reasonable doubt.
The trial judge directed the jury in relation to BTM's evidence about the other occasion at the Rockingham unit as follows:
Now, during the trial, you heard evidence about [BTM] staying at [the Rockingham unit] of [the appellant] and sleeping on the balcony with [R]. And then she gave evidence that she awoke on the futon, and [the appellant] was sitting on the edge of the futon masturbating whilst watching pornography.
Nothing was said, there was no evidence given by [BTM] that [the appellant] was aware of her presence. She said he didn't look at her or speak to her, and his back was to her. She said she got up and went into her sister [K's] room.
Now, the State led the evidence about that matter for a very limited purpose. And you are only able to use it for a very limited purpose in this case. If you find [BTM's] evidence about seeing [the appellant] masturbating while sitting on the edge of the futon at [the Rockingham unit] to be accurate and reliable, you can use that evidence in your assessment of the evidence of [BTM] and her credibility and her reliability.
Now, her evidence was that [the appellant] masturbated in the lounge room - she saw him masturbating in the lounge room on two occasions, once [at the Cooloongup house] and once [at the Rockingham unit]. He admits in his record of interview that he masturbated in the lounge room when he was alone. He of course denies [ever] doing so when [BTM], or anyone else for that matter, was present.
If you do find the evidence of [BTM] in respect of [the Rockingham unit] matter to be truthful and accurate, you can consider that evidence, along with all the other evidence, to decide whether the State has proved the charge beyond reasonable doubt. On the other hand, if you don't accept her evidence of this matter, then it is likely to influence your assessment of the credibility of [BTM].
So the evidence only has - can only be used for this very limited purpose. You can't reason that because [the appellant] masturbated in the lounge room at [the Rockingham unit], that he committed the offence that he is charged with on the indictment. You can't use the evidence of what happened in [the Rockingham unit], if you accept it, in substitution for the evidence about what happened in the lounge room at [the Cooloongup house].
You should not reason that simply because you find, if you do, that [the appellant] masturbated on another occasion, that he therefore committed the offence with which he has been charged. You should also not reason that because [the appellant] masturbated on another occasion, if you find he did, that he was the type of person likely to have committed the offence charged.
Ultimately, what you have to decide on the whole of the evidence which you accept, is whether or not the State has established beyond reasonable doubt that [the appellant] committed the specific act constituting the charge. You can't deliver a guilty verdict unless, having considered all of the evidence, you are satisfied beyond reasonable doubt that he did the specific act the subject of the charge on the indictment. That depends on your being satisfied beyond reasonable doubt, based on the evidence, that the act occurred (ts 170 ‑ 171).
Neither the prosecutor nor defence counsel raised with the trial judge any issue about her Honour's directions in relation to BTM's evidence concerning the other occasion at the Rockingham unit. No further direction or redirection was sought.

Conviction appeal in respect of indictment 2670 of 2019: the merits of the appeal

As I have mentioned, the sole ground of appeal alleges, in essence, that the trial judge misdirected the jury as to the use the jury could make of evidence of an uncharged sexual act by the appellant, namely his allegedly having masturbated at the Rockingham unit about 2 years after the charged offence.
Although the ground of appeal does not challenge the admissibility of the evidence of the uncharged sexual act, whether and, if so, on what basis the evidence of the uncharged sexual act was admissible facilitates a proper understanding and evaluation of the directions her Honour gave to the jury.
In Goldsmith v Sandilands,[1] Gleeson CJ made the following observations in relation to the concept of relevance and the admissibility of evidence:
(a)The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues at the trial.
(b)Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue at the trial.
(c)The general rule that relevant evidence will be received is qualified by other rules.
[1] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2].
The question as to the relevance of evidence, in a criminal trial before a judge and jury, is whether the evidence, if accepted, could rationally affect the jury's assessment of the probability of the existence of a fact in issue. See Smith v The Queen.[2] Evidence may have that effect directly or indirectly. See Roach v The Queen.[3] Evidence may be relevant if it assists in the evaluation of other evidence. See HML v The Queen.[4] Evidence is either relevant or it is not. No question of discretion is involved. A decision as to whether evidence is relevant is based on logic and general experience. See BBH v The Queen.[5] If evidence is not relevant, no further issue arises as to admissibility. Irrelevant evidence will not be received. See Smith [6]. The rules of exclusion at common law arise for consideration only with respect to evidence which is relevant. See Papakosmas v The Queen;[6] Roach [14].
[2] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 [7] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).
[3] Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610 [12] (French CJ, Hayne, Crennan & Kiefel JJ).
[4] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [6] (Gleeson CJ).
[5] BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499 [51] (French CJ).
[6] Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 [21] (Gleeson CJ & Hayne J).

In the present case, the prosecutor said, in effect, in her opening address that the State would adduce evidence from BTM about the alleged incident at the Rockingham unit because the State contended that the Rockingham incident showed that '[the appellant] masturbating in the lounge room when [BTM] was present was not a completely isolated incident' (ts 39). That statement by the prosecutor would reasonably have been understood to convey that BTM's evidence about the Rockingham incident would show that the appellant had a tendency to masturbate in the lounge room when BTM was present and that this tendency increased the probability that he masturbated in the lounge room of the Cooloongup house when BTM was present. BTM gave evidence to the effect that, when she awoke, and while the appellant was masturbating in her presence in the lounge room of the Cooloongup house, the appellant asked her whether she wanted 'to play with it' (that is, in context, play with his penis) (ts 56). BTM also gave evidence to the effect that about 2 years later, when she awoke, the appellant masturbated in her presence in the lounge room of the Rockingham unit (ts 62 ‑ 63). However, BTM said in evidence that the appellant did not look at or speak to her after she awoke during the Rockingham unit incident (ts 63 ‑ 64, 84 ‑ 85).
After the completion of the closing addresses, the prosecutor expressly conceded, in effect, that BTM's evidence about the other occasion at the Rockingham unit was not adduced or sought to be relied upon by the State as propensity, tendency or relationship evidence, either pursuant to s 31A of the Evidence Act or at common law.
Subject to some narrow and specific exceptions, evidence is not admissible in evidence in chief or re-examination (or in the cross‑examination of another witness) if the evidence merely bolsters the credibility of the witness. See R v Turner;[7] Palmer v The Queen;[8] HML [297] ‑ [301] (Heydon J); R v SBV.[9]
[7] R v Turner [1975] 1 QB 834 (Lawton LJ reading the judgment of the Court of Appeal of England and Wales).
[8] Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 [49] (McHugh J).
[9] R v SBV [2011] QCA 330 [23] (Chesterman JA; McMurdo P and Margaret Wilson AJA agreeing).
In the present case, BTM's evidence as to the incident at the Rockingham unit was not admissible if the State sought to adduce or to rely upon the evidence merely to bolster BTM's credibility in relation to her evidence that the appellant knowingly masturbated in her presence in the lounge room of the Cooloongup house.
In any event, a finding by the jury that BTM's evidence as to the incident at the Rockingham unit was credible could not, of itself, enhance the credibility of BTM's evidence in relation to the incident at the Cooloongup house, at least in circumstances where BTM's evidence concerning the Cooloongup house incident was not supported by any objective facts or corroborated by any other witness. See IMM v The Queen;[10] TSP v The State of Western Australia.[11]
[10] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 [62] ‑ [63] (French CJ, Kiefel, Bell & Keane JJ).
[11] TSP v The State of Western Australia [2021] WASCA 224 [56] (Buss P, Mazza & Beech JJA).
In Hall v Braybrook,[12] Dixon CJ said that the general rule that a tribunal of fact responsible for determining the guilt or innocence of an accused should not be informed of his or her criminal record, bad character or antecedents before the tribunal pronounces a finding of guilt has become a principle which pervades the law governing the conduct of criminal proceedings. His Honour added that all concerned in the criminal law are highly sensitive to any infringement of this principle because of 'the prejudice to the issue of guilt which is thought inevitably to ensue' (628). See also, to similar effect, the observations of Fullagar J (648). And see, too, Dawson v The Queen,[13] Phillips v The Queen[14] and the discussion by Hunt AJA (Simpson and Rothman JJ agreeing) in Seymour v The Queen.[15]
[12] Hall v Braybrook [1956] HCA 30; (1956) 95 CLR 620, 627 ‑ 628.
[13] Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1, 16 (Dixon CJ).
[14] Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45, 50 ‑ 51, 55 (Mason, Wilson, Brennan and Dawson JJ), 59 ‑ 60 (Deane J).
[15] Seymour v The Queen [2006] NSWCCA 206; (2006) 162 A Crim R 576 [46] ‑ [48].
In the present case, BTM's evidence to the effect that, about 2 years after the Cooloongup house incident, the appellant masturbated in her presence in the lounge room of the Rockingham unit was, in my opinion, evidence of disreputable conduct by the appellant. The conduct was disreputable because the appellant masturbated in an open area of the Rockingham unit that was readily accessible and would ordinarily be used by other people whom he knew were present in other areas of the unit.
Subject to the trial judge's discretionary power to exclude evidence on the ground that its probative value is outweighed by its prejudicial effect, evidence (including evidence of disreputable conduct by the accused) may be given at a criminal trial if the evidence is relevant in placing the evidence as to the facts and circumstances of the charged offence into their true context as part of the essential background against which the complainant's evidence and any evidence of the accused must be evaluated. See B v The Queen;[16] R v AH.[17] I note, for completeness, the care that must be taken by a trial judge in directing a jury in relation to evidence that merely provides context or background. See JEL v The State of Western Australia;[18] HTN v The State of Western Australia [No 2].[19]
[16] B v The Queen [1992] HCA 68; (1992) 175 CLR 599, 602 ‑ 603 (Mason CJ), 610 (Deane J).
[17] R v AH (1997) 42 NSWLR 702, 708 (Ireland J; Hunt CJ at CL and Levine J agreeing).
[18] JEL v The State of Western Australia [2022] WASCA 32 [219] (Buss P, Mazza & Beech JJA).
[19] HTN v The State of Western Australia [No 2] [2022] WASCA 51 [81] (Buss P, Mazza & Beech JJA).
In the present case, I am satisfied that BTM's evidence as to the incident at the Rockingham unit was not relevant for the purpose of placing her evidence as to the facts and circumstances of the charged offence into their true context as part of the essential background against which BTM's evidence and the statements by the appellant in his electronically recorded interview with police had to be evaluated. I am of that opinion having regard to the combined force of the matters set out at [73] ‑ [75] below.
First, the incident at the Cooloongup house (being the incident the subject of the count in the indictment) allegedly occurred one night, between 16 February 2001 and 17 February 2002, when BTM was aged 9 years. The incident at the Rockingham unit allegedly occurred about 2 years after the charged offence, when BTM was aged 11 years. Accordingly, the Rockingham unit incident was not part of the essential 'background' (or, indeed, part of the 'non‑essential' background) in relation to the commission of the charged offence.
Secondly, BTM's evidence as to the incident at the Cooloongup house was clear and complete in relation to all of the legal and factual elements of the charged offence.
Thirdly, the facts and circumstances of the Rockingham unit incident did not form the setting or part of the setting for the events the subject of the Cooloongup house incident. The facts and circumstances of the Rockingham unit incident were not necessary for and did not facilitate a full or better understanding of the events the subject of the Cooloongup house incident.
In the present case, no other basis for the admissibility of BTM's evidence as to the incident at the Rockingham unit (apart from those I have discussed) was suggested either at the trial or on the appeal.
I am satisfied, having regard to the manner in which the State ran its case at the trial and to the prosecutor's concessions, that BTM's evidence about the incident at the Rockingham unit was not relevant or admissible at the trial of the appellant for the charged offence.
If inadmissible evidence is adduced in the course of a criminal trial, an 'irregularity' occurs which will constitute a miscarriage of justice. See Weiss v The Queen;[20] Bounds v The Queen;[21] Rinaldi v The State of Western Australia;[22] Marshall v The State of Western Australia.[23] However, where such a miscarriage occurs, this court may refuse to allow the appeal and set aside the verdict of conviction if it considers that no substantial miscarriage of justice has occurred within s 30(4) of the Criminal Appeals Act 2004 (WA). See King v The Queen;[24] Weiss [35], [39], [40]; Marshall [18].
[20] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18], [36] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
[21] Bounds v The Queen [2006] HCA 39; (2006) 80 ALJR 1380 [78] (Kirby J).
[22] Rinaldi v The State of Western Australia [2007] WASCA 53 [178] (Pullin JA).
[23] Marshall v The State of Western Australia [2007] WASCA 96 [18] (Pullin JA).
[24] King v The Queen [2003] HCA 42; (2003) 215 CLR 150 [100] (Kirby J).
It is necessary, in considering whether no substantial miscarriage of justice has occurred, to have regard to all of the circumstances of the trial, including the degree to which the inadmissible evidence was prejudicial to the accused in the context of the issues in dispute at the trial; the stage of the trial at which the relevant evidence was adduced; whether the relevant evidence was adduced inadvertently or not; and whether any direction given by the trial judge to the jury was likely to have overcome the prejudicial nature of the relevant evidence. See Narrier v The State of Western Australia.[25]
[25] Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161 [41] (Buss JA; Martin CJ & Wheeler JA agreeing).
In R v Dolan,[26] King CJ (Mullighan J agreeing) observed:
In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is encumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put.
See also Auons v The Queen;[27] TSP [48].
[26] R v Dolan (1992) 58 SASR 501, 503.
[27] Auons v The Queen [2010] VSCA 223 [63] (Bongiorno JA; Buchanan JA & Habersberger AJA agreeing).
In my opinion, those observations apply not only to evidence of criminal conduct by the accused other than that which is the subject of the charges before the court, but also to evidence of disreputable conduct by the accused other than that which is the subject of the charges before the court.
Ordinarily, where it is necessary to guard against a jury impermissibly using evidence for the purpose of propensity or tendency reasoning, the direction must inform the jury that:
(a)the jury must not reason, on the basis of the evidence, that the accused was the kind of person who was likely to have committed the charged offence; and
(b)the jury must not take the evidence into account in deciding whether the State has proved beyond reasonable doubt that the accused committed the specific offence charged in the indictment.
See Hill v The State of Western Australia;[28] JEL [141].
[28] Hill v The State of Western Australia [2019] WASCA 209 [73] (Buss P & Mazza JA).
The risk of a jury engaging in propensity or tendency reasoning has been recognised as 'peculiarly strong' in cases involving alleged sex offences. See De Jesus v The Queen;[29] Hamilton (a pseudonym) v The Queen.[30]
[29] De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1, 3 (Gibbs CJ).
[30] Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 394 ALR 194 [43] (Kiefel CJ, Keane & Steward JJ), [62] (Edelman & Gleeson JJ).
There may, however, sometimes be a case (see, for example, Dann v The State of Western Australia[31]) in which other conduct evidence may be used as a circumstance relevant to guilt without propensity or tendency reasoning. See JEL [136] ‑ [137]; HTN [No 2] [114].
[31] Dann v The State of Western Australia [2021] WASCA 15.
In the present case, the trial judge's directions to the jury in relation to BTM's evidence as to the incident at the Rockingham unit (which I have reproduced at [58] above) were, relevantly, to the following effect:
(a)BTM did not give any evidence that the appellant was aware of her presence when she allegedly saw him masturbating at the Rockingham unit.
(b)If the jury found that BTM's evidence about seeing the appellant masturbating at the Rockingham unit was accurate and reliable, the jury could use that evidence only for a very limited purpose, namely in assessing the credibility and reliability of BTM's evidence generally.
(c)If the jury found that BTM's evidence that she saw the appellant masturbating at the Rockingham unit was truthful and accurate, the jury could consider that evidence, along with all the other evidence, in deciding whether the State had proved the charged offence beyond reasonable doubt.
(d)If, however, the jury did not find that BTM's evidence that she saw the appellant masturbating at the Rockingham unit was truthful and accurate, that finding was likely to influence the jury's assessment of BTM's credibility generally (including the credibility of her evidence in relation to the charged offence).
(e)If the jury found, on the basis of BTM's evidence, that the appellant masturbated on the occasion in question at the Rockingham unit, the jury must not reason that he therefore must have committed the charged offence or use that finding 'in substitution for' the evidence about what allegedly happened at the Cooloongup house.
(f)If the jury found, on the basis of BTM's evidence, that the appellant masturbated on the occasion in question at the Rockingham unit, the jury must not reason that he was therefore the type of person who was likely to have committed the charged offence.
(g)Ultimately, the jury had to decide, on the whole of the evidence which the jury accepted, whether or not the State had proved beyond reasonable doubt that the appellant masturbated in the presence of BTM at the Cooloongup house, as alleged in the charged offence.
(h)The jury could not return a verdict of guilty of the charged offence unless, having considered all of the evidence, the jury was satisfied beyond reasonable doubt that the appellant masturbated in BTM's presence at the Cooloongup house as alleged in the charged offence.
The directions which I have reproduced at [58] above and summarised at [85] above must be considered by taking the directions (and the summing up) as a whole and as a jury listening to those directions (and the summing up) as a whole might understand them, and not upon a subtle examination of the transcript or by giving undue prominence to any individual parts. See R v Dookheea.[32]
[32] R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle & Edelman JJ).
The direction summarised at [85(b)] above would have conveyed to the jury (in the context of the whole of the directions which I have reproduced at [58] above) that if the jury was of the view that BTM's evidence about the Rockingham unit incident was accurate and reliable, then the jury could use that evidence in assessing the accuracy and reliability of BTM's evidence about the charged offence.
The direction summarised at [85(c)] above would have conveyed to the jury (in the context of the whole of the directions which I have reproduced at [58] above) that if the jury was of the view that BTM's evidence about the Rockingham unit incident was truthful and accurate, then the jury could use that evidence, together with all the other evidence the jury accepted, in deciding whether the State had proved beyond reasonable doubt that the appellant had committed the charged offence.
In other words, her Honour told the jury in the direction summarised at [85(c)] above that if the jury accepted BTM's evidence about the Rockingham unit incident, then the jury could use that evidence in reasoning towards guilt on the charged offence.
It is true that the trial judge reminded the jury (see [85(a)] above) that BTM did not give any evidence that the appellant was aware of her presence when she allegedly saw him masturbating at the Rockingham unit. Also, it is true that her Honour instructed the jury (see [85(e)] above) that if the jury found, on the basis of BTM's evidence, that the appellant had masturbated in her presence at the Rockingham unit, the jury must not reason that the appellant therefore must have committed the charged offence and the jury must not use that finding 'in substitution for' the evidence about what allegedly happened at the Cooloongup house. Further, it is true that her Honour instructed the jury (see [85(f)] above) that if the jury found, on the basis of BTM's evidence, that the appellant had masturbated in her presence at the Rockingham unit, the jury must not reason that he was therefore the type of person who was likely to have committed the charged offence.
As to her Honour's reminder to the jury at [85(a)] above, although BTM gave evidence to the effect that, after she awoke, the appellant did not look at or speak to her while he was masturbating in the lounge room of the Rockingham unit, BTM gave other evidence to the effect that, before she awoke, she had been sleeping on a futon in the lounge room and, when she awoke, the appellant was sitting on the edge of the futon and was masturbating (ts 62).
As to the trial judge's instruction to the jury at [85(e)] above, her Honour's instruction to the effect that the jury must not use BTM's evidence about the Rockingham unit incident 'in substitution for' the evidence about what allegedly happened at the Cooloongup house, was confined to guarding against a wholly illogical approach by the jury to fact finding.
As to her Honour's instruction to the jury at [85(f)] above, her Honour's instruction to the effect that the jury must not reason, on the basis of the Rockingham unit evidence, that the appellant was the type of person who was likely to have committed the charged offence, was a direction which reflected the direction I have set out at [82(a)] above, but did not include or extend to the direction I have set out at [82(b)] above.
Indeed, the trial judge directed the jury (see [85(b)] and [85(c)] above) that if the jury accepted BTM's evidence about the Rockingham unit incident, then the jury could use that evidence in assessing the credibility and reliability of BTM's evidence generally and in reasoning towards guilt on the charged offence.
In my opinion, upon reading the whole of her Honour's directions in relation to BTM's evidence as to the incident at the Rockingham unit (which I have reproduced at [58] above) as a jury listening to them might understand them, in the context of her Honour's summing up as a whole, there was a real risk that (if the jury accepted BTM's evidence in relation to the Rockingham unit incident) the jury may have reasoned that:
(a)The appellant had masturbated in BTM's presence in the lounge room at the Rockingham unit, as alleged by BTM.
(b)It was likely that the appellant knew, when he was masturbating in the lounge room at the Rockingham unit, that BTM was present because BTM had been sleeping on a futon in the lounge room, for some time, before she awoke and saw him masturbating and because, when BTM awoke, the appellant was sitting on the edge of the futon.
(c)The truthfulness and accuracy of BTM's evidence that the appellant had masturbated in her presence in the lounge room at the Rockingham unit, combined with the likelihood that the appellant knew when he was masturbating that BTM was present, made it more likely that BTM's evidence about the Cooloongup house incident was accurate and reliable because her evidence about both incidents showed that the appellant would masturbate in the lounge room notwithstanding that, to his knowledge, other people were present.
(d)BTM's evidence about the Rockingham unit incident therefore made it more likely that the appellant had committed the charged offence.

The process of reasoning which I have set out at [95] above included reasoning based on a tendency that the appellant had. See, in particular, [95(c)] and [95(d)] above.
I consider that:
(a)a miscarriage of justice occurred at the trial; and
(b)it cannot be concluded that no substantial miscarriage of justice occurred.
The basis for that conclusion is the combined effect (in the context of the whole of the directions which I have reproduced at [58] above) of:
(a)her Honour's directions which I have summarised at [85(b)] and [85(c)] above;
(b)her Honour's failure to give the direction which I have set out at [82(b)] above; and
(c)the real risk, including the tendency reasoning, which I have identified at [95] and [96] above.
I consider that her Honour's reminder to the jury which I have summarised at [85(a)] above and her Honour's instructions to the jury which I have summarised at [85(e)] and [85(f)] above were not adequate to overcome the significant prejudice to the appellant (in the context of the issues in dispute at the trial) arising from the combined effect of the matters set out at [98] above.
As I have mentioned, defence counsel did not object to the admissibility of BTM's evidence concerning the Rockingham unit incident. Also, as I have mentioned, neither the prosecutor nor defence counsel raised with the trial judge any issue about her Honour's directions in relation to BTM's evidence concerning the Rockingham unit incident. However, I am satisfied that defence counsel did not fail to object and did not fail to seek a further direction or a redirection for any forensic or strategic reason. No forensic or strategic advantage was to be had. The proper inference is that defence counsel did not adequately appreciate the relevant legal principles or their application. Defence counsel's failure to object and his failure to seek a further direction or a redirection do not, in the circumstances of this case, require the conclusion that no miscarriage of justice occurred.
The sole ground of appeal relied upon by the appellant in his appeal in respect of indictment 2670 of 2019 has been made out.
Counsel for the appellant stated in the orders wanted, relevantly, that there should be a new trial. Counsel did not submit that a judgment of acquittal should be entered. Counsel's stance on this point was correct. In my opinion, it is in the public interest for the guilt or innocence of the appellant on the charged offence to be finally determined by a jury or other fact finding tribunal. Nothing in the circumstances which occasioned the miscarriage of justice or in any other circumstances renders it unjust to require the appellant to stand trial again. See, generally, the principles stated in Wark v The State of Western Australia.[33]
[33] Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365 [511] ‑ [517] (Buss P).
Leave to appeal should be granted on the sole ground of appeal, the appeal must be allowed, the judgment of conviction should be set aside and a new trial of the appellant must be had.

Conviction appeal in respect of indictment 2222 of 2019

I agree with Mazza and Mitchell JJA's disposition of the appeal in respect of indictment 2222 of 2019, namely:
(a)the appellant's application for an extension of time within which to appeal should be granted;
(b)leave to appeal should be granted on the sole ground of appeal; and
(c)the appeal must be dismissed.
Subject to one qualification, I agree with their Honours' reasons.
The qualification is that it is unnecessary, for the purposes of determining this appeal, to express an opinion as to the operation of s 39A of the Evidence Act. In those circumstances, I would not express a provisional view on the point. I reserve my opinion in relation to the proper construction and application of s 39A until a case arises which requires an examination and a determination of those issues.

MAZZA & MITCHELL JJA:

Summary

On 29 January 2021, the appellant was convicted, after trial before Burrows DCJ and a jury, of indecently dealing with a child under the age of 13 years. The complainant was the child of a friend of the appellant's partner who regularly stayed overnight at the appellant's house when her mother was at work. This offence was charged in indictment 2670 of 2019.
On 3 March 2021, the appellant was convicted after trial, before Stewart DCJ and a jury, of six sexual offences against three of his daughters who were all under the age of 16 years at the time of the offending. These offences were charged in indictment 2222 of 2019.
The appellant was sentenced to a total effective sentence of 2 years 6 months' immediate imprisonment, commencing on 30 March 2021, in respect of the offences charged in indictment 2222 of 2019. The appellant received a 6-month cumulative sentence for the offence charged in indictment 2670 of 2019. He was made eligible for parole in respect of all offences. The total effective sentence on both indictments is therefore 3 years' immediate imprisonment, which commenced on 30 March 2021.
The appellant now appeals against his convictions.
In CACR 51 of 2021, the appellant appeals against his conviction of the indecent dealing offence charged in indictment 2670 of 2019 on the sole ground that:
The trial judge erred when directing the jury about the use it could make of evidence of an uncharged sexual act by the Appellant in the trial of the Appellant.
This ground challenges the direction given in relation to evidence of an uncharged sexual act rather than the admissibility of that evidence.
In CACR 52 of 2021, the appellant appeals against his convictions of the offences charged in indictment 2222 of 2019 on the sole ground that the trial judge erred in deciding to give a family violence direction pursuant to s 39D of the Evidence Act 1906 (WA). The appellant contends that a direction under s 39D may only be requested where the family violence the subject of the direction does not constitute the charged offence. The appellant requires an extension of time in which to appeal against his convictions of the offences charged in indictment 2222 of 2019.
The applications for leave to appeal on these grounds, and the application for an extension of time in CACR 52 of 2021, have been referred to the hearing of the appeals.
For the following reasons in our view both appeals should be dismissed. In summary:
1.The trial judge's direction on indictment 2670 of 2019 properly identified the only permissible uses of the evidence in a way that made it clear that propensity reasoning was not a permissible use. There was no real possibility that a jury following the trial judge's direction would have used the relevant evidence for an impermissible purpose.
2.A family violence direction may be requested, and given, under s 39D of the Evidence Act in a case where the only evidence of family violence is of family violence said to constitute the charged offence or offences which are the subject of the proceedings, and the issue is whether the prosecution has proved that conduct constituting family violence occurred.

CACR 51 of 2021: direction about uncharged acts

We will deal firstly with the appeal against the conviction of the indecent dealing offence charged in indictment 2670 of 2019.

The charge

The appellant was charged that, on an unknown date between 16 February 2001 and 17 February 2002 at Cooloongup, he indecently dealt with the complainant, a child under the age of 13 years, by masturbating in her presence. That was an offence contrary to s 320(4) of the Criminal Code (WA) (Code).

The prosecution case

The prosecution case was that the complainant and her sisters would regularly spend weekends at the appellant's house in Cooloongup. They would sleep with the appellant's three daughters and the appellant's partner in one bedroom. The appellant would sleep out in the lounge room.
The charged indecent dealing offence allegedly occurred one night when the complainant was 9 years old, when she decided to sleep in the lounge room to get away from the crowded bedroom. During the night, the complainant woke up and saw pornography playing on a television and the appellant masturbating on a mattress on the floor. The appellant then said to her, 'Do you want to play with it?', referring to his penis.[34]
[34] Trial ts 36 - 37, 55 - 56.
In her opening, the prosecutor identified the critical issue in dispute as being whether the appellant knowingly masturbated in front of the complainant when she was a child.[35]
[35] Trial ts 38.
In opening, the prosecutor anticipated leading evidence from the complainant as to another incident which subsequently occurred at the appellant's Rockingham flat when the complainant was 11 years old. At this time, the complainant was having a sleep over at the Rockingham flat, at which one of her sisters was staying. The complainant woke up in the lounge room of the flat on a futon bed, to see the appellant sitting on the edge of the bed facing a television and masturbating. The complainant got up straight away and walked into a bedroom to get away from him.[36] There was no evidence suggesting that the appellant saw the complainant or was aware of her presence while masturbating in the Rockingham flat.
[36] Trial ts 39, 62 - 64.
The prosecutor explained the use to which this evidence would be put in the following terms:[37]
You will hear about this incident not because the [appellant] is charged with respect to this but because the State says that this incident shows that the [appellant] masturbating in the lounge room when [the complainant] was present was not a completely isolated incident.
[37] Trial ts 39.
The prosecutor also indicated that the State would rely on the appellant's admission in a police interview that he used to masturbate in the lounge room of the Cooloongup house. In that interview, the appellant denied ever having done so in the complainant's presence or when any other people were present.
In closing submissions, the prosecutor made the following observations as to the evidence of the incident in the Rockingham flat:[38]
When you first heard [the complainant's] account of what happened these evenings, you may well have thought, 'What sort of a man could recklessly masturbate in a lounge room of a house, in the central room, in a small unit or a house?' In the Cooloongup house, there was no door between that lounge room and the dining room and then the kitchen. There was plenty of children in that house at any time.
Well, there is some common ground in this trial about who would masturbate in that room. The [appellant] would. He admits in his interview that he would watch pornography on the TV, and that the TV was in the lounge room at [the Rockingham flat], the TV was in the lounge room at Cooloongup, and he would masturbate to that porn if it was any good.
That is perfectly consistent with what [the complainant] has told us. You can be satisfied that she is telling the truth about the accused man masturbating in that lounge room, because she's honest and telling the truth, and also because the accused man admits that he would masturbate in those lounge rooms. [The complainant] tells us that this happened twice.
…
And [the complainant] telling you this establishes the context and the background for that offence at Cooloongup. This evidence shows you it was absolutely able to happen. We know it happened, we know how it happened. The [appellant] would masturbate in that lounge room, and [the complainant] was in the lounge room when it happened.

The trial judge's direction

[38] Closing ts 2 - 3.

The trial judge gave the jury the following direction about the evidence of the incident at the Rockingham flat when the complainant was 11 years old:[39]
[39] Trial ts 170 - 171.
Now, during the trial, you heard evidence about [the complainant] staying at the [Rockingham flat] and sleeping on the balcony with [the appellant's daughter]. And then she gave evidence that she awoke on the futon, and [the appellant] was sitting on the edge of the futon masturbating whilst watching pornography.
Nothing was said, there was no evidence given by [the complainant] that [the appellant] was aware of her presence. She said he didn't look at her or speak to her, and his back was to her. She said she got up and went into [her sister's] room.
Now, the State led the evidence about that matter for a very limited purpose. And you are only able to use it for a very limited purpose in this case. If you find [the complainant's] evidence about seeing [the appellant] masturbating while sitting on the edge of the futon at [the Rockingham flat] to be accurate and reliable, you can use that evidence in your assessment of the evidence of [the complainant] and her credibility and her reliability.
Now, her evidence was that [the appellant] masturbated in the lounge room - she saw him masturbating in the lounge room on two occasions, once in [the Cooloongup house] and once in [the Rockingham flat]. He admits in his record of interview that he masturbated in the lounge room when he was alone. He of course denies [ever] doing so when [the complainant], or anyone else for that matter, was present.
If you do find the evidence of [the complainant] in respect of the [latter incident] to be truthful and accurate, you can consider that evidence, along with all the other evidence, to decide whether the State has proved the charge beyond reasonable doubt. On the other hand, if you don't accept her evidence of this matter, then it is likely to influence your assessment of the credibility of [the complainant].
So the evidence only has - can only be used for this very limited purpose. You can't reason that because [the appellant] masturbated in the lounge room at [the Rockingham flat], that he committed the offence that he is charged with on the indictment. You can't use the evidence of what happened in [the Rockingham flat], if you accept it, in substitution for the evidence about what happened in the lounge room at [the Cooloongup house].
You should not reason that simply because you find, if you do, that [the appellant] masturbated on another occasion, that he therefore committed the offence with which he has been charged. You should also not reason that because [the appellant] masturbated on another occasion, if you find he did, that he was the type of person likely to have committed the offence charged.
(emphasis added)

The appellant's submissions on appeal

The appellant submits that, at trial, the prosecutor disavowed any reliance on the evidence of the incident at the Rockingham flat as propensity evidence admissible under s 31A of the Evidence Act. The appellant contends that the failure by the trial judge to direct the jury in terms expressed by this court recently in LNN v The State of Western Australia,[40] and Hill v The State of Western Australia,[41] was a wrong decision on a question of law. The appellant contends that, in the absence of such a direction, there was a real and not remote possibility that the jury might adopt propensity reasoning in relation to the evidence of the uncharged act.
[40] LNN v The State of Western Australia [2021] WASCA 39.
[41] Hill v The State of Western Australia [2019] WASCA 209.
The appellant submits that the effect of the judge's direction was that the evidence could be used by the jury, not only in assessing the complainant's credibility, but also when they considered the evidence in relation to the charged offence. The appellant also contends that this 'misdirection' was amplified by the effect of the prosecutor's opening and closing submissions and the fact that the charged act occurred in very similar circumstances to the incident in the Rockingham flat.[42]
[42] Appellant's submissions, par 35.
The appellant also contends that the trial judge's direction was inconsistent with the manner in which, and extent to which, the prosecutor relied on evidence of the uncharged act at the trial.

Disposition of appeal

Burrows DCJ directed the jury before this court delivered its decision in LNN and when the reasons for decision in Hill were suppressed. Notwithstanding that, the adequacy of the trial judge's directions must be assessed in light of the principles applied in those cases.
In LNN and Hill, the court applied the general principle described by Beech JA in LNV v The State of Western Australia:[43]
Generally speaking, where evidence is admissible for one purpose but inadmissible for another, the trial judge should direct the jury that they must not use the evidence for the purpose for which it is inadmissible, at least where the use of the evidence for the impermissible or irrelevant purpose would be adverse to the accused. Where evidence is relevant and admissible for other reasons, but incidentally discloses the accused's propensity, a warning to the jury not to engage in propensity reasoning is ordinarily required. That will be all the more so if, as occurred here, evidence that was admissible for other purposes is used by the prosecution to invite propensity reasoning in circumstances where the evidence could not properly be used for such a purpose. (citations omitted)
[43] LNV v The State of Western Australia [2019] WASCA 180[103].
In LNN, the permissible purpose for which the evidence of uncharged acts was admitted was never clearly articulated at trial, but it was accepted that the evidence was not admissible as evidence of the accused's propensity to commit offences of the relevant kind. The trial judge in that case directed the jury that the evidence of uncharged acts was led to 'put events in their proper context' without explaining what that phrase meant. The risk that the jury in LNN might consider propensity reasoning to be open in relation to the evidence of uncharged acts was amplified by:
1.submissions by the prosecutor inviting propensity reasoning;
2.the directions given in relation to the cross-admissibility of evidence on different counts; and
3.a direction by the trial judge that:
If you do find that evidence [of the uncharged acts] to be truthful and accurate, you can consider that evidence along with all the other evidence to decide whether the State has proved the charges beyond reasonable doubt.
The first sentence of the fifth paragraph quoted at [124] above of the direction given by Burrows DCJ in the present case, considered in isolation, is very similar to the passage of the direction in LNN which we have just quoted. However, a trial judge's directions are not to be considered in isolation but as a whole as a jury listening to the direction would have understood it.[44]
[44] La Fontaine v The Queen (1976) 136 CLR 62, 73, 81, 87; R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [37]; Cooper v The State of Western Australia [2010] WASCA 190 [23], [53] - [54].
An important difference between the present case and LNN is that in the present case the trial judge's direction did identify the permissible use of the evidence. The jury were told that they could use the evidence for the limited purpose of assessing the complainant's evidence and her credibility and reliability. Further, the direction made it clear that this was the only permissible use of the evidence.
In addition, Burrows DCJ expressly warned the jury against adopting propensity reasoning when she directed the jury that they should not reason that, because the appellant masturbated on another occasion, he was the type of person likely to have committed the offence charged.
In our view, the jury in the present case, listening to the judge's direction as a whole, would have understood it to be identifying the assessment of the credibility and reliability of the complainant's evidence as the only permissible use of the evidence of the incident at the Rockingham flat, and to be prohibiting the use of propensity reasoning. In that context, the first sentence of the fifth paragraph quoted at [124] above would not reasonably have been understood as inviting propensity reasoning.

That direction was consistent with the use of the evidence suggested to the jury by the prosecutor. While the purpose was put in opaque terms in the prosecutor's opening, the closing submissions explained the work the evidence had to do. Taken in isolation, the jury might have thought that it was inherently implausible that the appellant would watch pornography on television and masturbate in an open room in a very crowded house. The jury might have considered the implausibility to be such that the complainant must be lying or mistaken in her account. Evidence that the appellant had on another occasion masturbated in an open area of a unit occupied by others, if accepted, would tend to show that the complainant's account was not incredible or unreliable for that reason. This was the use of the evidence to which the prosecutor referred in the passage quoted at [123] above. That is also the permissible use of the evidence referred to by the trial judge in assessing the complainant's evidence and her credibility and reliability.
Of course, evidence as to the appellant's admissions to police that he used to masturbate in the lounge room of the Cooloongup house also tended to show that the complainant's account of him doing so on the occasion of the charged offence was not inherently implausible. However, the fact that there was other evidence of the appellant masturbating in open areas of a residence he shared with others did not make the complainant's evidence of the incident in the Rockingham flat irrelevant or inadmissible.
In our view, the trial judge's direction considered as a whole did direct the jury that they must not use the evidence for any purpose for which it was inadmissible. The direction identified the only permissible use of the evidence of the incident in the Rockingham flat - being the assessment of the credibility and reliability of the complainant's evidence - and directed the jury not to engage in propensity reasoning.
As this court recognised in TSP v The State of Western Australia,[45] a direction will be required where there is a 'real possibility that the jury may otherwise apply propensity or tendency reasoning to the contextual evidence'. In our view, there was no real possibility in this case that a jury following the trial judge's directions would use the evidence of the incident in the Rockingham flat for an impermissible propensity or tendency purpose. The risk which the appellant sought to identify was that the jury would consider the fact that the appellant masturbated in the Rockingham flat, when there was nothing to indicate that he was aware of the complainant's presence at that time, made it more likely that he knew the complainant was present when he masturbated in the Cooloongup house. In our view, there was no real possibility that the jury would reason in that way. Logically, that reasoning did not follow and there was no suggestion that it could during the course of the trial. Further, that approach would go beyond using the evidence of the incident at the Rockingham flat to assess the credibility and reliability of the complainant's evidence and would use the evidence to indicate that the appellant was more likely to have knowingly masturbated in front of a child at the Cooloongup house. This would involve the jury going beyond what Burrows DCJ directed was the only permissible use of the evidence of the Rockingham incident.
[45] TSP v The State of Western Australia [2021] WASCA 224 [51].
It is also relevant to note the manner in which the judge's direction was developed.
After the close of evidence at the end of the second day of trial, Burrows DCJ had a discussion with the prosecutor in the absence of the jury as to the relevance of the evidence of the incident in the Rockingham flat.[46] Burrows DCJ expressed the preliminary view that it could only be used to show that the appellant would masturbate in the lounge room.[47] The appellant's trial counsel indicated that he did not have anything to add to the trial judge's observations, but would think about the issue overnight.[48]
[46] Trial ts 146 - 151.
[47] Trial ts 150.
[48] Trial ts 153.
Before the jury returned on the third day of trial, Burrows DCJ thanked counsel for their email correspondence as to the appropriate direction about the use of evidence of the incident at the Rockingham flat.[49] Her Honour indicated that she had adopted what counsel had said into her charge. Her Honour then read the relevant passage of her direction to counsel, who did not raise any issue with it.[50] At the conclusion of the judge's charge, in which the direction was given, counsel raised some matters but did not make any complaint about the direction which the appellant now seeks to impugn.
[49] The email from the appellant's trial counsel relevantly suggested that the jury be directed that, if they found the complainant's evidence that she may have seen the appellant masturbating in the Rockingham flat to be credible and reliable, 'then still that reasoning, must not be used in their consideration of her evidence of what she alleged occurred at' the Cooloongup house. The State's email submitted that the jury could use the evidence in their assessment of the credibility and reliability of the complainant, and that the jury should be directed that they could not reason that: because the appellant masturbated in the lounge room in front of the complainant at the Rockingham flat means he is guilty of the offence on Indictment.
[50] Trial ts 156 - 157.
Trial counsel were immersed in the atmosphere of the trial as it developed. They were alerted by the trial judge as to the issue of the appropriate use of the evidence of the incident in the Rockingham flat. They had input into the direction and heard it twice. The fact that counsel did not raise any concern tends to reinforce our assessment that there is no realistic possibility that the jury, following the trial judge's direction, might use the evidence for an impermissible purpose. That is, as was the case in Dann v The State of Western Australia,[51] the fact that the appellant's trial counsel raised no concern with the directions tends to confirm that those present at the trial and familiar with the evidence perceived no real risk that the jury would misunderstand the directions and use the evidence in an inappropriate way.
[51] Dann v The State of Western Australia [2021] WASCA 15 [55].
In our view, the direction given by Burrows DCJ as to the use of the evidence of the incident at the Rockingham flat did not involve any error of law or occasion any miscarriage of justice.
While we would grant leave to appeal in CACR 51 of 2021, in our view the appeal must be dismissed.

CACR 52 of 2021: family violence direction

The appeal in CACR 52 of 2021 raises a question of statutory construction concerning s 39D of the Evidence Act. The question is whether the reference to 'criminal proceedings in which family violence is an issue' comprehends criminal proceedings where the alleged family violence constitutes the charged offence or offences.

Statutory provisions

Section 39D(1) of the Evidence Act provides that:
In criminal proceedings in which family violence is an issue, prosecution or defence counsel (or, if the accused is unrepresented, the accused) may request at any time that the trial judge direct the jury on family violence in accordance with all or specified parts of section 39F.
Under s 39D(2) of the Evidence Act:
The trial judge must give the jury a requested direction on family violence, including all or specified parts of section 39F if so requested, unless there are good reasons for not doing so.
Section 39D(4)(a) of the Evidence Act requires the trial judge to give the direction 'as soon as practicable after the request is made'. Section 39D(4)(b) provides that the judge may give the direction before any evidence is adduced in the trial.
Section 39F of the Evidence Act identifies a range of matters which a judge may include in a direction requested under s 39D of the Evidence Act. Examples include that family violence is not limited to physical abuse and may, for example, include sexual abuse,[52] and that people may react differently to family violence and there is no typical, proper or normal response to family violence.[53]
[52] Section 39F(1)(a)(i) of the Evidence Act.
[53] Section 39F(1)(b)(i) of the Evidence Act.
'Family violence' in s 38 - s 39G is defined in s 37 of the Evidence Act to have the meaning given in s 5A of the Restraining Orders Act 1997 (WA). Section 5A(1) of the Restraining Orders Act defines 'family violence' to mean:
(a) violence, or a threat of violence, by a person towards a family member of the person; or
(b) any other behaviour by the person that coerces or controls the family member or causes the member to be fearful
Section 5A(2) of the Restraining Orders Act contains a non‑exhaustive list of examples of behaviour that may constitute family violence. These examples include 'an assault against the family member' and 'a sexual assault or other sexually abusive behaviour against the family member'. The definition of 'family member' in s 4(3) of the Restraining Orders Act (read with the definition of 'family relationship' in s 4(1) of that Act) includes a child of the person. 'Family member' is defined in s 37 of the Evidence Act to have the meaning given in s 4(3) of the Restraining Orders Act. Section 39B, s 39C and s 39E of the Evidence Act make provision for a family violence direction in 'criminal proceedings in which self-defence in response to family violence is an issue'.
All or specified parts of s 39F of the Evidence Act may be included in a direction requested under s 39C of that Act.
Section 39 and s 39A of the Evidence Act are relevant to the appellant's contentions in this appeal. They provide:
39. Expert evidence of family violence
(1) This section applies to any criminal proceedings where evidence of family violence is relevant to a fact in issue.
(2) The evidence of an expert on the subject of family violence is admissible in relation to any matter that may constitute evidence of family violence.
(3) Evidence given by the expert may include —
(a) evidence about the nature and effects of family violence on any person; and
(b) evidence about the effect of family violence on a particular person who has been the subject of family violence.
(4) For the purposes of this section, an expert on the subject of family violence includes a person who can demonstrate specialised knowledge, gained by training, study or experience, of any matter that may constitute evidence of family violence.
39A. Evidence of family violence — general provision
In proceedings for an offence, evidence of family violence is admissible if family violence is relevant to a fact in issue.
Section 38 of the Evidence Act provides a broad and non‑exhaustive list of what may constitute evidence of family violence in relation to a person. Examples include:
(a)the history of the relationship between the person and a family member, including violence by the family member towards the person, or by the person towards the family member, or by the family member of the person in relation to any other family member;
(b)the cumulative effect of family violence, including the psychological effect, on the person or a family member affected by that violence;
(c)social, cultural or economic factors that impact on the person or a family member who has been affected by family violence[.]
Section 37 - s 39G of the Evidence Act were inserted by pt 10 of the Family Violence Legislation Reform Act 2020 (WA) (Amendment Act), the relevant parts of which commenced operation on 1 October 2020.
While provisions concerning evidence and directions about family violence have been enacted in other jurisdictions, there are significant differences between the provisions of the Evidence Act and the provisions in other jurisdictions.[54] In any event, the provisions in other jurisdictions do not appear to have been judicially considered.

Proceedings at trial

[54] See Crimes Act 1958 (Vic) s 322J, s 322M; Jury Directions Act 2015 (Vic) s 55, s 58, s 59, s 60; Evidence Act 1977 (Qld) s 132B; Evidence Act 1929 (SA) s 34V, s 34W, s 34X, s 34Y.

It is unnecessary, for the purposes of addressing the statutory construction question, to descend into the detail of the evidence of the alleged sexual offences by the appellant against three of his biological daughters in these reasons. It is sufficient to note the appellant's contention in the appeal that the only material evidence of family violence in this case was the evidence of the charged acts of sexual abuse allegedly committed by the appellant against his daughters. This appeal may be resolved on the assumption that this is the case.
After the close of evidence, the trial judge had a discussion with counsel about the directions which she should give. The prosecutor requested a direction under s 39F of the Evidence Act, 'that being the family violence provisions with respect to delay'.[55] The appellant's trial counsel objected to the giving of a direction, essentially on the basis that the proposed direction about delay under s 36BD of the Evidence Act made the family violence direction unnecessary, and the giving of both a delay and family violence direction would 'unfairly bolster the credibility of the complainants'.[56]
[55] Trial ts 508.
[56] Trial ts 586 - 587.
The trial judge ruled that:[57]
[I]t is quite clear that, under section 39D(2), the trial judge must give the jury a requested direction on family violence including all or specified parts of section 39F, if so requested, unless there are good reasons for not doing so.
And it appears that the only submission on behalf of the defence is that, because I'm already giving a section 36BD direction, I should not give a section 39D direction, and that it would be unfair. I do not, in all the circumstances of this case - I am of the view that that is not a sufficient reason, or not a sufficient good reason for not doing do [sic] as set out in section 39D(2).
[57] Trial ts 588.
The trial judge gave the jury the following direction in the course of her Honour's charge:[58]
Now, members of the jury, the next direction concerns family violence. Now, family violence is not limited to physical abuse under the law. Family violence includes sexual abuse. Now, three points I need to bring to your attention.
The first is that experience shows that people may react differently to sexual abuse in a family context. There is no typical, proper or normal response to such abuse in that context.
The second is that experience shows it's not uncommon for a person who has been subject to sexual abuse in a family context not to report such abuse to police or seek assistance to stop the sexual abuse, even from people whom you might expect they could have trusted.
The third is that experience shows that decisions made by a person subject to sexual abuse in a family context about how to address, respond to or avoid such sexual abuse may be influenced by a variety of factors.

Appellant's submissions on appeal

[58] Trial ts 611.

The ground of appeal in this case is limited to the question of whether there was a proper foundation for the giving of a family violence direction at all. The ground does not contend that the trial judge should have found that there were good reasons for not giving a family violence direction under s 39D(2). Nor does the ground make any complaint as to the content of the family violence direction which Stewart DCJ gave in this case.
The appellant submits that the purpose of the Evidence Act provisions introduced by the Amendment Act was to:[59]
a.Enact what is already the case under the common law as to relevance of evidence relating to family relationships and dynamics in criminal proceedings;
b. Now prescribe a direction of law to be given if such evidence is admitted.
[59] Appellant's submissions, par 23.
The appellant submits that the starting point is to look to s 39A of the Evidence Act to see if evidence of family violence is admissible. If evidence of family violence is admissible, and is an issue in the trial, then a family violence direction may be requested. The appellant also submits that s 39A does not relate to evidence of conduct which is the subject of the offences charged in the proceedings themselves.[60]
[60] Appellant's submissions, par 24 - 25.
The appellant's submission is that s 39D only applies where evidence of family violence is admitted under s 39A of the Evidence Act. The appellant submits that evidence of family violence other than that which is alleged to constitute the charged offence is required to ground a request for a direction under s 39D of the Evidence Act.[61] The appellant submits that to construe the provisions otherwise would invite a form of circular reasoning - requiring evidence of family violence alleged to constitute a charged offence be accepted before using that evidence to support a finding that the offence was committed - which Parliament could not have intended.[62]
[61] Appellant's submissions, par 31 - 32.
[62] Appellant's submissions, par 25, 34 - 35.
In the present case, the appellant contends that there was no evidentiary basis to ground the provision of a family violence direction, as the only material evidence was the evidence about the charged acts of sexual abuse. The appellant contends that there was no basis in law for the trial judge to give the direction 'with the force of law behind it', and that the decision to give the direction involved a wrong decision on a question of law.[63]

Proper construction of s 39D of the Evidence Act

[63] Appellant's submissions, par 31 - 32, 35 - 36.

For the following reasons, we do not accept the appellant's construction of s 37 - s 39G of the Evidence Act.
First, the construction has no basis in, and is inconsistent with, the text of s 39D of the Evidence Act. Under s 39D(1), the entitlement of counsel to request a family violence direction arises in 'criminal proceedings in which family violence is an issue'. The entitlement is not conditioned upon evidence being admitted under s 39 or s 39A of the Evidence Act. The natural meaning of the language used in s 39D(1) encompasses criminal proceedings in which an accused is charged with an offence constituted by family violence. There is no textual basis for concluding that criminal proceedings in which the primary issue is whether the accused engaged in conduct which constitutes family violence are not 'criminal proceedings in which family violence is an issue'.
Secondly, the context provided by s 39D(4)(b) of the Evidence Act counts compellingly against the appellant's construction, which seeks to tie the operation of s 39D to the admission of evidence under s 39 or s 39A of the Evidence Act. Section 39D(4)(b) provides for the giving of a family violence direction before any evidence is adduced at trial. If a family violence direction could relate only to evidence adduced under s 39 or s 39A of the Evidence Act, it would make no sense for the direction to be given before any evidence was admitted and the admissibility of the evidence of family violence determined.
Thirdly, the context of the provisions of s 39F, as to the permissible content of a family violence direction, counts against the appellant's construction. The directions referred to in s 39F are not, or at least need not be, directed to specific conduct but may concern features of family violence generally. In a case where family violence constitutes the charged conduct as well as a pattern of behaviour that gives context to the evidence of the charged conduct, the section does not provide for a family violence direction to be confined to the latter conduct. Further, the directions about not uncommon reactions and responses to family violence will be most obviously directed to the jury's assessment of a complainant's reaction to charged conduct, and with whether the complainant's conduct after the charged offending is consistent with the charged conduct having occurred. That context counts against an objective legislative intention to exclude charged conduct from the scope of a family violence direction.

Fourthly, the different language used in s 39, s 39A and s 39D counts against the appellant's construction. Section 39A is concerned with the admissibility of evidence and applies 'if family violence is relevant to a fact in issue'. Section 39 is concerned with the admissibility of expert evidence and applies 'where evidence of family violence is relevant to a fact in issue'. By contrast, s 39D, which is concerned with the directions to a jury, applies to criminal proceedings 'in which family violence is an issue'. The provision for these different criteria in the different sections counts against s 39D operating only where s 39 or s 39A is engaged. Further, that s 39D applies where family violence is an issue, as opposed to family violence or evidence of family violence being relevant to a fact in issue, counts against a construction that s 39D does not apply where family violence is the charged offence.
Fifthly, the ordinary meaning of the statutory text does not require or permit a jury to engage in circular reasoning, as alleged by the appellant. Section 39D and s 39F are concerned with factors which may affect the assessment of evidence of family violence. The direction does not require evidence of family violence constituting the charged offence to be accepted before the jury considers the direction. So, for example, the jury may have regard to the direction about the range of common reactions to family violence in assessing whether a complainant's response to alleged family violence constituting a charged offence is consistent with the charged conduct having occurred. The jury does not have to accept the complainant's evidence as to the occurrence of the family violence said to constitute the offence before applying the direction.
Sixthly, the purpose of s 39D and s 39F is inconsistent with the appellant's construction. That purpose, apparent from the statutory text, is to provide for a judicial direction which is apt to dispel misunderstandings by jurors as to the nature of, and victims' common responses to, family violence. As elaborated by the explanatory memorandum to the Bill for the Amendment Act:[64]
These directions are designed to address common stereotypes, myths and misconceptions about family violence. The directions can be utilised in criminal proceedings where there is evidence of family violence and the evidence is relevant to the determination of issues in the trial.
…
The matters set out in [s 39F] are aimed at addressing misconceptions that jury members may have about family violence.
Research demonstrates that the nature and dynamics of family violence are not well understood in the community. For example, many members of the community do not understand how the dynamics of family violence may impact on the behaviour of victims of family violence, such as why a victim of family violence may remain in an abusive relationship. Consequently, these victims, and any action they may take in self‑defence, are often perceived to be irrational or unreasonable. However, research has found that it is not uncommon for victims of family violence to remain in abusive relationships for a variety of reasons, including fear of retaliatory violence, concern for children, lack of finances and/or lack of alternative accommodation.
The matters set out in these directions are therefore designed to proactively address these and other misconceptions jurors may have about family violence and to inform jurors of the factors impacting victims of family violence. This will allow the jury to better assess the actions or claims of an accused or complainant where they are relevant to deciding issues in a trial.
[64] Explanatory memorandum, pages 72, 75.
The appellant's construction of the provisions would not advance this purpose where an accused is charged with inflicting family violence upon a complainant. It would be an odd outcome that a direction as to misconceptions about family violence could only be given where the issue of whether a complainant had been subjected to family violence was not a central issue in the criminal proceedings.
There is also nothing to indicate that s 39 and s 39A are intended to operate as a gateway into the balance of the new provisions.
Section 39 would appear to be a legislative response to this court's decision in Liyanage v The State of Western Australia.[65] In that case, the principal issue was whether the accused acted in self-defence when she killed her husband, where there was evidence of repeated and sustained family violence by the deceased against her. This court held that evidence of a social worker in relation to family violence was properly excluded on the ground that it did not satisfy the requirements for the admissibility of expert opinion evidence. Section 39, read with s 38, of the Evidence Act would seem to be directed to addressing that issue.
[65] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359.
Section 39A of the Evidence Act may only have limited effect in expanding the evidence which would be admissible at common law. Section 39A provides that evidence of family violence is admissible if family violence is relevant to a fact in issue. Section 38 provides a non‑exhaustive list of what may constitute evidence of family violence. As illustrated by the decision in Liyanage, evidence of that kind, if relevant, will generally be admissible in any event. In this case, it is unnecessary for this court to reach any concluded view as to the operation of s 39A of the Evidence Act. However, the explanatory memorandum suggests that its purpose was not to radically alter the pre-existing law as to the admissibility of evidence, or to be the pivot on which other provisions of the Evidence Act would turn. It indicates:[66]
This provision intends to make clear that evidence of family violence is admissible when relevant to issues before the court, including but not limited to, where self-defence is at issue. The value that this evidence may have in ensuring that the true context and dynamics of a relationship between the accused and complainant, or deceased, is placed before the court warrants that its status be clarified in legislation. This is intended to resolve any residual doubts that may exist about its relevance and admissibility.
[66] Explanatory memorandum, page 72.
Section 39D(1) of the Evidence Act provides for counsel to request a family violence direction in 'criminal proceedings in which family violence is in issue'. Proceedings in which the issue is whether the accused engaged in family violence which constitutes the charged offence or offences are proceedings in which family violence is an issue for the purposes of s 39D(1). When a request is made, the trial judge ultimately determines both whether a direction should be given and the appropriate content of the direction (under s 39D(2) and s 39F). However, the direction may be requested and given in a case where the only evidence of family violence is of family violence said to constitute the charged offence or offences which are the subject of the proceedings and the issue is whether the prosecution has proved that the conduct constituting family violence occurred.

Disposition of appeal

In the present case the appellant was charged with the following offences on indictment 2222 of 2019 (and convicted of all counts other than count 5):
1.Encouraging one of his daughters, who was under the age of 16 years and he knew to be a lineal relative, to do an indecent act, namely to touch his penis with her hand, contrary to s 329(5) of the Code.
2.Encouraging the same daughter as identified in count 1 to engage in sexual behaviour, contrary to s 329(3) of the Code. In opening, the prosecutor alleged this offence to be constituted by the appellant telling his pre-pubescent daughter that, if she had sex with him, he would give her a jewellery box that she had been admiring.[67]
3. & 4.Indecently dealing with another daughter who was under the age of 16 years, and who he knew to be a lineal relative, by masturbating in her presence, contrary to s 329(4) of the Code.
5.Encouraging the same daughter as identified in counts 3 and 4 to do an indecent act, namely allowing the appellant to touch her vagina, contrary to s 329(5) of the Code.
6. & 7.Indecently dealing with a third daughter who was under the age of 16 years, and who he knew to be a lineal relative, by masturbating in her presence, contrary to s 329(4) of the Code.
[67] Trial ts 331.
Each of the charged acts constituted sexually abusive behaviour by the appellant against a family member, and so constituted 'family violence' as defined by s 5A of the Restraining Orders Act. The issue in the trial was whether the prosecution had proved, beyond reasonable doubt, that the appellant had engaged in each of the charged acts (being conduct constituting family violence). The appellant's trial was therefore a criminal proceeding in which family violence was an issue for the purpose of s 39D(1) of the Evidence Act. The prosecutor's request for a family violence direction was properly made under s 39D(1) of the Evidence Act. As the trial judge did not find there to be good reasons for not giving the direction (and there is no challenge to that aspect of her Honour's decision), s 39D(2) of the Evidence Act required a family violence direction to be given. The sole ground of appeal is not established.
The requirement for an extension of time in which to appeal arises from a miscommunication between the appellant's legal representatives. We would grant the extension of time and leave to appeal. However, for the above reasons in our opinion the appeal must be dismissed.

Orders

For the above reasons, we would make the following orders in these appeals:

CACR 51 of 2021

1.Leave to appeal is granted on the sole ground of appeal.
2.The appeal is dismissed.

CACR 52 of 2021

1.The appellant's application for an extension of time in which to appeal is granted.
2.Leave to appeal is granted on the sole ground of appeal.
3.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
3 JUNE 2022