Chuguna v The State of Western Australia
[2024] WASCA 134
•31 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CHUGUNA -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 134
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 20 AUGUST 2024
DELIVERED : 22 AUGUST 2024
PUBLISHED : 31 OCTOBER 2024
FILE NO/S: CACR 79 of 2024
BETWEEN: VERN PETER CHUGUNA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MACLEAN DCJ
File Number : IND 44 of 2023
Catchwords:
Criminal law - Practice and procedure - Application to sever indictment - Whether evidence on a charge of attempting to indecently deal with a child under the age of 13 years and evidence on a charge of indecently dealing with a child of or over 13 years and under 16 years of age is cross-admissible - Where prosecution contends that the evidence is admissible on both charges to prove a tendency of the accused to have a sexual interest in young female children aged about 12 years and to act on that sexual interest in public places in circumstances that were brazen and gave rise to a high risk of detection - Whether evidence of that tendency has significant probative value in proving elements of the charged offences relating to the accused's state of mind - Whether probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial
Legislation:
Criminal Code (WA), s 4, s 222, s 319(1), s 320(4), s 321(4), s 552
Criminal Procedure Act 2004 (WA), s 133(3)
Evidence Act 1906 (WA), s 31A
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | P McManus |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | Aboriginal Legal Service - Broome |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644
HTN v The State of Western Australia (No 2) [2022] WASCA 51; (2022) 298 A Crim R 337
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
JS v The Queen [2022] NSWCCA 145
KHA v The State of Western Australia [2022] WASCA 173
La Bianca v The State of Western Australia [2019] WASCA 105
Lilley v The State of Western Australia [2019] WASCA 164
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
MNA v The State of Western Australia [2020] WASCA 84
NDY v The State of Western Australia [2020] WASCA 172
PRS v The State of Western Australia [2023] WASCA 106
R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56
Rassi v The King [2023] NSWCCA 119
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285
The State of Western Australia v JHN [2021] WASCA 225; (2022) 59 WAR 143
BUSS P & MAZZA JA:
The appellant has appealed to this court pursuant to s 26(1)(b) of the Criminal Appeals Act 2004 (WA).
The appellant has been charged on indictment with three counts.
Count 1 alleges that on 1 April 2023, at Broome, the appellant offered to supply a prohibited drug, namely cannabis, to a child, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). KM was the child to whom the appellant allegedly offered to supply cannabis.
Count 2 alleges that on the same date and at the same place as in count 1, the appellant attempted to indecently deal with KM, a child under the age of 13 years, contrary to s 320(4) read with s 552 of the Criminal Code (WA) (the Code).
Count 3 alleges that on 15 April 2023, at Broome, the appellant indecently dealt with CG, a child of or over the age of 13 years and under the age of 16 years, by touching her buttock, contrary to s 321(4) of the Code.
The appellant has pleaded not guilty to all of the charged offences.
On 7 June 2024, the appellant filed an application in the District Court, pursuant to s 133(3) of the Criminal Procedure Act 2004 (WA) (the CP Act), for an order that he be tried on counts 1 and 2 of the indictment separately from count 3.
On 18 June 2024, the State filed an application in the District Court for an order that, in any trial of the appellant on the indictment, 'the evidence in relation to Counts 2 and 3 [is] cross‑admissible in relation to one another as propensity and/or relationship evidence, as those terms are defined in s 31A [of the] Evidence Act 1906'.
On 23 July 2024, MacLean DCJ heard the appellant's application for severance and the State's application for an order in relation to s 31A of the Evidence Act 1906 (WA).
At the hearing before his Honour, counsel for the appellant and counsel for the State were agreed that:
(a)if the State's application for an order in relation to s 31A was dismissed, then the indictment should be severed by his Honour in exercise of the discretion conferred by s 133(3) of the CP Act; and
(b)if the State's application for an order in relation to s 31A was granted, then no question of severance would arise.
On 29 July 2024, MacLean DCJ granted the State's application for an order in relation to s 31A of the Evidence Act and dismissed the appellant's application for severance.
On 5 August 2024, the appellant filed his appeal notice. The hearing of the appeal was expedited. On 20 August 2024, the appeal was heard. On 22 August 2024, this court ordered that leave to appeal be granted and the appeal be dismissed.
A trial of the appellant was listed to begin on 26 August 2024. The trial began on 26 August 2024 before Tovey DCJ and a jury, but was aborted on 30 August 2024 for reasons unrelated to the issues in this appeal.
On 22 August 2024, when this court granted leave to appeal and dismissed the appeal, we said that reasons for making those orders would be published at a later date. These are our reasons.
The statutory provisions with respect to joinder and severance
Section 85(1) of the CP Act provides that sch 1 to the Act has effect in relation to indictments and charges in them.
Clause 2(3) of sch 1 provides, relevantly, that an indictment must contain one charge only, unless cl 7 or another written law permits otherwise.
Clause 7(1) provides, relevantly, that an indictment may charge two or more offences as alternatives to one another. By cl 7(2), relevantly, unless two or more charges are expressly said by an indictment to be alternatives to one another, they are not.
Clause 7(3) provides, relevantly:
[An] indictment may charge one or more persons with 2 or more offences if the offences —
(a)form or are a part of a series of offences of the same or a similar character; or
(b)are alleged to arise substantially out of the same or closely related acts or omissions; or
(c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,
and may do so without alleging a connection between the offences.
Clause 9(1) of sch 1 provides, relevantly and in effect, that if two or more charges are properly joined in an indictment those charges must be tried together unless a court orders otherwise under the CP Act.
Section 133(3)(a) of the CP Act provides, relevantly, that if a court is satisfied that an accused is likely to be prejudiced in a trial of an indictment because it contains two or more charges, the court may order that the accused be tried separately on one or more of the charges.
By s 133(5), relevantly:
In deciding whether to make an order under subsection (3) … in respect of an indictment to be tried by a jury, it is open to a superior court —
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if —
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
Section 26(1) of the Criminal Appeals Act provides:
If an accused is charged in one indictment with 2 or more offences —
(a)the prosecutor may appeal to the Court of Appeal against any order made by a judge of a superior court that there be a separate trial of any of the charges; and
(b)the accused may appeal to the Court of Appeal against a refusal by a judge of a superior court to order that there be a separate trial of any of the charges.
By s 26(7) of the Criminal Appeals Act, on an appeal against a decision to grant or to refuse a separate trial (as the case may be) this court 'may confirm the order or refusal, or set it aside and make any order that could have been made on the application for a separate trial'.
The statutory provisions with respect to propensity evidence
Section 31A of the Evidence Act provides:
31A. Propensity and relationship evidence
(1)In this section —
propensity evidence means —
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers —
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
Overview of the State's case as to the facts and circumstances of the charged offences
An overview of the facts and circumstances of the charged offences, as alleged by the State, is as follows.
The State alleges that on 1 April 2023 the appellant offered KM, who was then aged 12, cannabis (count 1) and he attempted to indecently deal with KM (count 2).
KM was part of a group of five girls. Pre‑recorded evidence has been obtained from four of the five girls, including KM. The State did not call the fifth girl to give evidence.
There is CCTV footage that captures an interaction between the group of girls and the appellant at a laundromat. The CCTV footage does not, however, capture the charged offences. One adult witness, a security guard, is seen on the CCTV footage, but his evidence does not appear to be material.
The State alleges that at the laundromat the appellant offered KM cannabis and made reference to wanting a 'girlfriend'. At the laundromat the appellant attempted to lure KM into a taxi. She refused. The group of girls and the appellant left the laundromat. They walked across and some distance down the street before stopping outside a building. There was a public toilet on the other side of the street. The appellant told KM to come with him into the toilet where he would give her cannabis. The evidence of one of the girls in the group, ZW, supports a connection between the appellant's offer to provide KM with cannabis in exchange for her engaging in sexual behaviour with the appellant. There was a link between the appellant wanting a 'girlfriend' and his attempt to entice KM into the toilet where he would give her cannabis.
The State's case is that the appellant was encouraging KM to go into the toilet with him so that he could sexually offend against her.
The State alleges that on 15 April 2023 the appellant walked past CG, who was then aged 13, at a shopping centre in Broome and, as he passed her, touched her buttock (count 3).
Pre‑recorded evidence has been obtained from CG. Other witnesses proposed to be called by the State did not see the appellant touch CG's buttock, but they did see the appellant in their vicinity. Some of the other witnesses heard CG's initial complaint that she thought the appellant had touched her. Some of the other witnesses then confronted the appellant. He said 'I'm sorry' and appeared to be drunk. There is no CCTV footage of the incident.
Overview of the State's case on the appellant's alleged tendency and its admissibility as propensity evidence
The State contends in relation to counts 2 and 3 that evidence it intends to adduce on each of those counts is admissible as propensity evidence in relation to the other of those counts, pursuant to s 31A of the Evidence Act.
At the hearing before MacLean DCJ the prosecutor contended that the relevant tendency that the appellant has or had is a tendency to have 'a sexual interest in female children and a preparedness to act upon it, including in a public place with female children unknown to him'.
In the respondent's answer in the appeal, counsel for the State expressed the relevant tendency in the manner put by the prosecutor at the hearing before MacLean DCJ.
However, at the hearing of the appeal, counsel for the State contended that the relevant tendency that the appellant has or had is a tendency to have 'a sexual interest in young female children of about 12 years of age and to act upon that sexual interest in public places, in circumstances that [are] brazen and give rise to a high risk of detection' (appeal ts 46 ‑ 47).
The State asserts that its evidence of the appellant's alleged tendency has significant probative value in relation to counts 2 and 3. The State also asserts that the probative value of its evidence of the appellant's alleged tendency, compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
KM's child witness interview
KM's child witness interview on 5 April 2023 in relation to her interaction with the appellant was to the following effect.
KM was with her friends MC, GS, ZW and ZW's younger sister (MFI B, 5).
When KM and her friends were at Town Beach, near the laundromat, they encountered a man staring at them (MFI B, 4).
The appellant asked KM and her friends if they could 'set him up with somebody' (MFI B, 3 ‑ 4). KM took this as meaning to find the appellant a girlfriend (MFI B, 5).
The appellant also asked, 'Which one is the oldest?' (MFI B, 5). KM answered that she was the oldest, and that she did not want to set the appellant up (MFI B, 5).
KM told the appellant that she was 12 years old, MC was 10 years old and GS was 9 or 10 years old (MFI B, 6 ‑ 7).
The appellant then asked if they 'wanted money or anything' (MFI B, 3), and also sat down next to KM and offered 'gunja' (taken to be cannabis) (MFI B, 5 ‑ 6). He said that he had sold some cannabis for the money and would give both to KM if she set him up (MFI B, 6).
The appellant wanted KM to set him up with 'any woman at the Town Beach' (MFI B, 6).
KM declined the offer (MFI B, 5 ‑ 6).
At some point during this conversation, the appellant asked KM to hop in the taxi with him. There was a taxi parked near the laundromat at the time (MFI B, 14).
The appellant told KM and her friends to follow him to the toilet. They walked there from the laundromat (MFI B, 8). The appellant was behind KM and her friends while they were walking to the toilet (MFI B, 9).
When they arrived at the toilet, the appellant repeatedly told KM and her friends to go into the toilet (MFI B, 9). The appellant told KM to go first, and then MC (MFI B, 12). The appellant was talking mainly to KM and MC, but more to KM (MFI B, 23). He did not say why he wanted them to go into the toilet (MFI B, 12 ‑ 13). KM refused each time (MFI B, 9).
During this conversation, MC said to KM that '[the appellant] probably wanted to touch us in the toilet'. That made KM feel disgusted (MFI B, 22). The appellant did not say anything else to her that made her feel disgusted (MFI B, 23).
As KM was walking away, she started yelling at the appellant, telling him to 'have respect for [them] … because [they were] just young girls', and that she was going to ask the security guard to call the police (MFI B, 9). The appellant replied asking her not to do that (MFI B, 10).
The appellant walked away. KM did not know where he went because she did not look back at him (MFI B, 12).
KM and her friends then went back to the shops to tell the security guard to call the police (MFI B, 3).
KM said that she could not understand all of what the appellant said, as he was mumbling and seemed to be drunk due to how he looked (MFI B, 29 ‑ 30).
KM's pre‑recorded evidence
KM's pre‑recorded evidence in relation to her interaction with the appellant was not materially different, for present purposes, from the account she gave in her child witness interview.
MC's child witness interview
MC's child witness interview on 4 April 2023 in relation to her interaction with the appellant was to the following effect.
MC and her friends encountered the appellant sitting inside the laundromat, next to the door (MFI C, 6, 8 ‑ 9). MC stayed outside the laundromat, but KM, GS, ZW and ZW's younger sister entered the laundromat (MFI C, 18).
The appellant asked them to follow him (MFI C, 6).
The appellant told KM to go next door. Then, he told her, 'Come follow me … to the toilet. We go to the toilet, I'll do something'. When MC and her friends asked what he was going to do, the appellant said, 'I want you there, [KM], to come in with me so I can do something to you' (MFI C, 9).
MC heard the appellant say, 'Walk to town beach way and meet me in the toilet' (MFI C, 10).
They left the shops and went towards the toilet (MFI C, 10 ‑ 11). MC was following KM, who was following the appellant, and MC's friends were following her (MFI C, 11 ‑ 12). MC did not want KM to be alone in the toilet with the appellant (MFI C, 19).
Before they arrived at the toilet, the appellant offered KM an ounce (taken to be an ounce of cannabis) if she followed him to the toilet. The appellant never gave her the ounce (MFI C, 13).
When they arrived at the toilet, the appellant said, 'We're going to toilet, you first and I walk last'. MC said, 'No, we're not going to the toilet. What for'. The appellant replied, 'You busting'. MC took that to mean whether they needed to use the toilet (MFI C, 7).
KM said that she was 'not busting', and asked if the appellant was. The appellant replied, 'Yeah, I'm busting. You, [KM], come in the toilet with me.' (MFI C, 7).
MC pulled KM by her hand and the group of girls ran to tell the security guard about what had happened (MFI C, 11).
MC's pre‑recorded evidence
MC's pre‑recorded evidence in relation to her interaction with the appellant was not materially different, for present purposes, from the account she gave in her child witness interview.
GS's child witness interview
GS's child witness interview on 6 April 2023 in relation to her interaction with the appellant was to the following effect.
GS and her friends met the appellant when they were going to the shops to buy lollies (MFI D, 5).
The appellant wanted to 'shrade [them] the dope' (MFI D, 5). This is taken to mean that the appellant wanted to give them cannabis (MFI D, 8).
The appellant was sitting on a chair in the laundromat 'trying to … give up… dope to people to just rape them' (MFI D, 8).
The appellant spoke to KM, who was the oldest among them (MFI D, 8). He asked them to go in the toilet with him in exchange for cannabis and money (MFI D, 10).
KM said that she could find the appellant a 'bigger girlfriend', but the appellant said that he wanted her (MFI D, 15).
When outside the toilet, the appellant asked the girls or KM to go to the toilet. When KM asked why, he said, 'To just give you guys the ganja'. KM asked for it immediately, but the appellant did not agree to that (MFI D, 10 ‑ 11).
GS and her friends began to swear at the appellant and GS threw a stick at him. The appellant responded, saying that he was telling his sister to come to attack GS and her friends. KM replied that they were not afraid (MFI D, 12).
GS and her friends returned to the shops while the appellant went towards the beach (MFI D, 12).
GS's pre‑recorded evidence
GS's pre‑recorded evidence in relation to her interaction with the appellant was not materially different, for present purposes, from the account she gave in her child witness interview.
ZW's child witness interview
ZW's child witness interview on 5 April 2023 in relation to her interaction with the appellant was to the following effect.
ZW first saw the appellant sitting on the seats in the laundromat (MFI E, 6). The appellant had $1500 sticking out of his pocket. ZW knew this as she had counted the money (MFI E, 8).
The appellant asked ZW and her friends whether they wanted some money (MFI E, 9). (In her pre‑recorded evidence‑in‑chief on 16 May 2024, ZW said that she said 'money' rather than 'ganja' during her interview because she thought she was going to get in trouble if she said 'ganja' (ts 179).)
KM wanted to go to the toilet, and so her friends followed her (MFI E, 11). They realised that the appellant was following them (MFI E, 13).
The appellant attempted to 'hook up' with KM (MFI E, 5). KM told the appellant that she was only a young girl, and to find an older woman (MFI E, 5, 15). The appellant replied that he did not care, and that he just wanted a girlfriend (MFI E, 8). He said, 'I just want a girlfriend, because … I'm single and … my old girlfriend, they left me' (MFI E, 11).
MC told KM to do it for money, as MC wanted to go shopping (MFI E, 8).
KM said to the appellant that she was 'not hooking up with [the appellant] because [he was] disgusting' (MFI E, 11).
The man said that he would bring his sister to 'belt' ZW and her friends if they did not 'hook up' with him (MFI E, 17).
The man walked away (MFI E, 11).
ZW and her friends ran back to the shops to tell the security guard (MFI E, 11).
ZW's pre-recorded evidence
ZW's pre‑recorded cross‑examination on 16 May 2024 in relation to her interaction with the appellant was to the following effect.
ZW saw the appellant before they interacted at the laundromat, when they were walking from the playground to the laundromat. The appellant was walking in front of ZW and her friends (ts 180).
Before the appellant reached the laundromat, KM asked the man for cigarettes. The appellant said that he did not have cigarettes, but he had cannabis. He continued walking to the laundromat (ts 181, 183).
ZW did not talk to the appellant at the laundromat but heard KM and MC talking to him (ts 181). ZW said the following about the interaction between the appellant, KM and MC:
(a)When the appellant asked KM to go to the toilet, MC said to go to the toilet so as to 'fake him, so they [could] rob his ganja' (ts 182).
(b)KM then told the appellant that she was too young for him, but that she could help him look for an older woman (ts 182).
(c)ZW had previously said in her interview that the man thought KM was 20 years old. She accepted the proposition that she was just guessing what the appellant might have been thinking (ts 182 ‑ 183).
(d)MC was pressuring KM to 'hook up with [the appellant] to get some of his ganja' (ts 183).
(e)KM and MC decided to go to the toilet and they tried to trick the man to rob his cannabis (ts 184).
(f)ZW saw the man go up to the toilet and wash his hands (ts 184).
(g)At one point the appellant was coming out of the toilet (ts 184).
ZW also gave evidence to the following effect:
(a)KM, MC, GS, ZW and ZW's younger sister were on the side of the street under the shade, which was on the opposite side of the road to the toilet where the appellant was (ts 184).
(b)ZW could see but could not hear the conversation between the appellant, KM and MC (ts 184 ‑ 185).
(c)ZW heard the appellant ask the group of girls to help find him a girl, offer them cannabis, and 'wanting' KM, and she could hear that as they were standing in a group. (It is unclear if this is a reference to the events inside the laundromat, or outside the toilets) (ts 185).
(d)ZW heard the appellant say that he wanted KM to go in the toilet for sex while they were standing in a group (ts 185).
(e)MC said, 'He want to mmm me in the toilet', to which the appellant replied, 'Well, kind of that' (ts 186).
(f)ZW accepted that MC put that idea in her head, and that the appellant never said anything about sex (ts 186).
(g)ZW accepted that the appellant never tried to touch KM or tried to use his body to force any of the girls into the toilet (ts 185 ‑ 187).
CG's child witness interview
CG's child witness interview on 15 April 2023 in relation to her interaction with the appellant was to the following effect.
Before the incident, the appellant had looked at CG and had walked past her twice. The first time that the appellant walked past CG, she did not notice him much. The second time that the appellant walked past CG, she noticed him staring at her out of the corner of her eye but did not think much of it (MFI A, 9, 14).
CG described the incident in the following ways:
(a)As CG was standing up, the appellant went past her and 'grabbed [her] bum like that ‑ like touch… under [her] butt' (MFI A, 5). At this point in the video, CG seemed to do a quick pinching motion with her hands (05:37).
(b)CG then described it as a 'touch under [her] butt' (MFI A, 5).
(c)The appellant grabbed CG on the 'lower right bottom of the butt' (MFI A, 9).
(d)The appellant 'sneakily walked past and then touched [her] bum like ‑ like a hook' (MFI A, 9).
(e)CG did not see the contact, but it felt like the appellant's hand was 'going like that … at the bottom … of [her] butt' (MFI A, 9 ‑ 10). At this point in the video, CG shows the interviewer three actions.
(i)First, CG extends her right arm forwards with her palm open, facing upwards, before simultaneously flicking her wrist upwards and doing a quick squeezing/scrunching motion with her fingers such as to close her palm (16:50).
(ii)Secondly, CG does the same action with her fingers but without any movement to her wrist (17:04).
(iii)Thirdly, she turns her right arm so that her palm faces to her left, then does the same action with her fingers but without any movement to her wrist (17:05).
CG said that she does not know how to explain the action in words (MFI A, 9).
(f)In response to the question of where the appellant's hand went, CG said 'bottom of [her] butt' (MFI A, 10).
(g)The interviewer asked where the appellant's hand touched CG's body. In response, CG said, 'Uh, like under my bum' (MFI A, 11).
(h)CG was standing up, and the man was walking past 'that way', behind her back, and did 'that' (MFI A, 11 ‑ 12). At this point in the video, CG pointed behind her left shoulder, indicating the path that the appellant took relative to her (18:43).
(i)The appellant only made contact with CG once (MFI A, 10).
(j)The appellant used his right hand (MFI A, 12).
(k)After the contact, the appellant just walked straight past CG and out of the store (MFI A, 11).
CG began to cry (MFI A, 5). She told her friend Lisa that 'that guy just grabbed [her] bum' (MFI A, 21). She then told her brother that 'that guy there just grabbed [her] bum' (MFI A, 13). CG also called her father and told him that 'someone grabbed [her] body' (MFI A, 5).
After a break in the interview, the interviewer asked CG further questions. CG described the incident as the appellant 'tapped [her] bum underneath', 'on the bottom of [her] bum ‑ right', '[o]n [her] shorts' (MFI A, 17).
CG described the appellant as 'the guy that touched [her] bum'. Earlier in that line of questioning the interviewer had asked, 'How … do you know the man … was the man that touched [CG] on [her] bum?' (MFI A, 19).
CG's pre-recorded evidence
CG's pre-recorded evidence on 15 May 2024 in relation to her interaction with the appellant was to the following effect.
In CG's evidence‑in‑chief, the prosecutor consistently used the term 'grabbed' when leading evidence from CG (ts 74 ‑ 80).
In CG's cross‑examination, defence counsel consistently questioned CG by referring to her 'feeling something touch [her] on the bottom' (ts 83, 85, 88). Throughout the cross‑examination, CG does not make any comment on the use of the term 'touched' as opposed to the use of the term 'grabbed'.
In CG's re‑examination, the prosecutor then used the expression 'touched' when leading evidence from CG. The prosecutor asked CG what she felt when she said 'something touched my bottom'. CG replied that she felt fingers (ts 94).
Aside from the different terms used to describe the contact, the content of CG's answers during her pre‑recorded evidence was generally consistent with the version of events in her interview.
The ground of appeal
The appellant relied upon one ground of appeal which alleges that MacLean DCJ erred in exercising his discretion under s 133(3)(a) of the CP Act by refusing to order that counts 1 and 2 be tried separately from count 3.
Particulars of the ground of appeal assert that:
(a)his Honour erred in concluding that the evidence in respect of count 2 is admissible in respect of count 3 as evidence of a tendency that the appellant has or had, pursuant to s 31A of the Evidence Act;
(b)his Honour erred in concluding that the evidence in respect of count 3 is admissible in respect of count 2 as evidence of a tendency that the appellant has or had, pursuant to s 31A of the Evidence Act; and
(c)by reason of the particulars set out in pars (a) and (b) above, his Honour's exercise of the discretion under s 133(3)(a) of the CP Act miscarried.
The nature of the appeal to this court
An appeal against a decision that propensity evidence is admissible under s 31A of the Evidence Act proceeds on the correctness standard. That is, whether propensity evidence has significant probative value has only one correct answer. This court must determine for itself whether the propensity evidence sought to be relied upon by the State has significant probative value as distinct from merely determining whether it was open to the primary judge to arrive at his or her conclusion. See The State of Western Australia v JHN.[1]
[1] The State of Western Australia v JHN [2021] WASCA 225; (2022) 59 WAR 143 [118(a)] (Buss P, Mazza & Vaughan JJA).
Counsel for the appellant's submissions to this court
Counsel for the appellant submitted in relation to whether the evidence is capable of proving the relevant tendency asserted by the State:
(a)Taking the evidence in respect of count 3 at its highest (that is, assuming no issues of credibility or reliability arise), the evidence establishes that the appellant fleetingly 'tapped' CG's buttock in a public place. That evidence provides only weak support for the proposition that the appellant has or had the alleged tendency. As to the appellant's preparedness to act upon his alleged sexual interest in public places, the incident involving CG may suggest brazenness, but the circumstances taken at their highest do not support a tendency of the appellant to gratify a sexual interest 'in anything beyond a fleeting touch'.
(b)Taking the evidence in respect of count 2 at its highest involves putting aside the contradictory accounts of each of the child witnesses and accepting that the appellant said to KM words to the effect that he wanted KM to go into the toilets so that he could give her cannabis and 'do something to' her. Although one inference is that the 'something' was of a sexual nature, the evidence does not provide strong support for the appellant having a tendency to have a sexual interest in young female children of about 12 years of age. The evidence in respect of count 2, taken at its highest, is not significantly probative of any preparedness to act on the alleged sexual interest, including in a public place. The appellant did not seek out an interaction with young girls. Rather, on the evidence, the girls approached him. Further, the appellant did not act upon any alleged sexual interest in count 2. Indeed, taking the State's case at its highest, the appellant did not act on the alleged sexual interest because the girls remained in a public place. The appellant stood at a distance from the girls and did not attempt to touch any of them.
(c)Accordingly, the evidence does not strongly support the alleged tendency.
Counsel for the appellant submitted in relation to whether proof of the relevant tendency asserted by the State increased the likelihood of the appellant having committed the offences charged in counts 2 and 3:
(a)Even assuming proof of the relevant tendency, the State's evidence of the relevant tendency is framed at such a high level of generality that it cannot have significant probative value.
(b)The framing of the relevant tendency as a tendency to act upon the alleged sexual interest 'in public places' allows for the fact that one (and only one) of the counts (that is, count 3) occurred in public.
(c)Count 3 is alleged at its highest to be a fleeting and brazen touch in public. Count 2 is alleged at its highest to be an attempt to ask KM to follow him into a secluded place (that is, the toilets), presumably to be out of sight.
(d)Having regard to both the limited capacity of the evidence to prove the relevant tendency, and the generality of the alleged tendency, the threshold of significant probative value cannot be crossed.
Counsel for the appellant submitted that if, contrary to the appellant's contention, the evidence is capable of proving the relevant tendency asserted by the State and the evidence of the relevant tendency has significant probative value:
(a)The unfairness to the appellant of the evidence of the relevant tendency outweighs its probative value.
(b)A particular unfairness arises because of the risk that the jury may 'borrow' proof of elements on one count from the other.
(c)In particular, there is a risk that the jury will reason that they cannot draw any conclusions as to the appellant's state of mind in relation to the incident the subject of count 2 or the incident the subject of count 3, but will treat 'the presence of two allegations involving children together as so suspicious that [the appellant] must be guilty'. That is, the jury may impermissibly draw inferences about the appellant's character from his 'association' with the charged offences, which would distract them from 'an impartial examination of the evidence on each Count'. This, in effect, 'shores up' the State's case by having a joint trial of the charges in circumstances where 'the alleged offences are not clearly related'.
(d)The risk of a jury engaging in impermissible propensity reasoning or tendency reasoning is 'peculiarly strong' in cases involving alleged sex offences. See PRS v The State of Western Australia.[2]
(e)The prejudice to the appellant is too great to be guarded against by a judicial direction to the jury. An 'average jury' would be incapable, as an intellectual exercise, of acting in accordance with the direction.
[2] PRS v The State of Western Australia [2023] WASCA 106 [90] (Buss P, Mazza & Vaughan JJA).
Counsel for the appellant submitted that if this court decides that the propensity evidence sought to be relied upon by the State should not be admitted under s 31A of the Evidence Act, then the indictment should be severed in exercise of the discretion conferred by s 133(3) of the CP Act.
Counsel for the State's submissions to this court
Counsel for the State submitted that the 'relatively public nature' of the incidents the subject of counts 2 and 3 is significant. The present case did not merely involve a man who possessed a sexual interest in young girls and a tendency to act upon that interest. Rather, the appellant was prepared, in both instances, to act in a brazen manner in public.
It was submitted that the relevant tendency asserted by the State was established by the evidence that will be adduced in respect of both incidents. The State is not required to prove one or more of the charged offences beyond reasonable doubt before the evidence adduced in support of one charge may be taken into account in a 'cross‑admissibility' sense as propensity evidence with respect to the other charge. The jury need not be satisfied of the appellant's guilt with respect to one of the two incidents before concluding that the relevant tendency exists and taking that tendency into account in determining guilt on the other charge. That approach, so it was submitted, is consistent with the High Court's decision in Director of Public Prosecutions v Benjamin Roder (a pseudonym).[3]
[3] Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644.
Counsel for the State submitted that the 'live issues' on counts 2 and 3 primarily concern the appellant's state of mind. The State does not contend that the propensity evidence assists 'in any significant way' in establishing the identity of the appellant as the offender.
As to count 2, the appellant is alleged to have attempted to commit an offence of indecent dealing with a child who was at the time aged 12. The appellant's intention is an important, if not the primary, issue with respect to count 2. There is no direct admission as to intention. It was submitted that the evidence of the appellant's sexual interest and his willingness to act upon it, in combination with the evidence of KM and the other child witnesses, makes it more likely, to a significant extent, that the appellant's intention (as a component of the element of attempt) in attempting to entice KM into the toilet was to engage in sexual behaviour in exchange for cannabis.
Counsel noted that the appellant has not (yet) advanced an alternative competing inference reasonably open and consistent with innocence. If, however, a competing alternative inference is advanced by the appellant at the trial, the jury may well think that it would be an unlikely coincidence that an adult man with a sexual interest in young girls, who brazenly acts upon this sexual interest in public, would have attempted to entice KM into a public toilet for reasons other than engaging in sexual activity with her.
As to count 3, it was submitted that if the jury were to find as an intermediate fact that the appellant did in fact have a sexual interest in young girls aged about 12, then that finding would be significantly probative in rebutting any argument by the appellant to the effect that his contact with CG's buttock was inadvertent. Further, that finding would also be significantly probative of whether any deliberate act of touching by the appellant was indecent.
Counsel contended that, in relation to both incidents the subject of counts 2 and 3, a jury might properly consider that it is inherently unlikely that a person who possesses the appellant's sexual interest in young girls aged about 12 would act upon the interest in a brazen way in public. On both occasions, there was a high risk of the appellant's alleged conduct being detected. To engage in such conduct when there was a high risk of his conduct being detected is so at odds with the probabilities of ordinary human behaviour that separate juries, assessing only one of the incidents in ignorance of the existence of the other, may well entertain a reasonable doubt that the offending occurred as alleged. Counsel referred to Hughes v The Queen.[4]
[4] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [59] (Kiefel CJ, Bell, Keane & Edelman JJ).
Counsel for the State argued that the probative value of the propensity evidence relied upon by the State, compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
Counsel for the State contended that the trial judge's directions about how the evidence of the two incidents may be relied upon on the issue of the existence and relevance of the appellant's alleged sexual interest in young girls aged about 12 on the one hand, and whether one or both of the charged offences in counts 2 and 3 have been proven beyond reasonable doubt on the other, will not be of such complexity as to be beyond the capacity of an ordinary jury to apply faithfully.
The merits of the appeal: the principles governing the admission of propensity evidence under s 31A of the Evidence Act
The principles governing the admission of propensity evidence under s 31A of the Evidence Act are well established. The principles were referred to by Buss P and Mazza and Vaughan JJA in JHN [112] ‑ [120]. It is convenient to reproduce what we wrote on that occasion. The principles we will reproduce are not inconsistent with the recent decision of the High Court in Roder.
In s 31A(1) of the Evidence Act, the term 'propensity evidence' is defined to mean:
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had.
Section 31A(2) states, relevantly, that propensity evidence is admissible in proceedings for an offence if the court considers:
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence, compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
In RMD v The State of Western Australia,[5] Beech JA summarised various principles, enunciated in the case law, that are relevant in determining whether propensity evidence has significant probative value within s 31A(2)(a), as follows:
[5] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185]. See also RMD [50] ‑ [52] (Buss P); La Bianca v The State of Western Australia [2019] WASCA 105 [24] ‑ [26] (Buss P & Mazza JA), [144] (Mitchell JA); Lilley v The State of Western Australia [2019] WASCA 164 [59] (Buss P, Mazza & Beech JJA).
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(2)In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
(3)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue.
(4)The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.
(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.
(6)If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
(8)The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value. (footnotes omitted)
In The State of Western Australia v Jackson,[6] Buss P and Mitchell and Beech JJA made these observations concerning the determination of whether propensity evidence has significant probative value within s 31A(2)(a):
First, the term 'propensity evidence', as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence … of a tendency that the accused person has or had'. The word 'conduct', in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a)the evidence is capable of proving the propensity; and
(b)proof of the propensity increases the likelihood of the commission of the offences.
Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'. For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.
Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value. (footnotes omitted)
[6] The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [20] ‑ [23].
In Jackson [52] - [53], the court also said:
(a)An enquiry as to whether propensity evidence has significant probative value begins with the identification of the fact or facts in issue to which the propensity evidence is allegedly relevant.
(b)Whether propensity evidence has significant probative value depends upon the nature of the fact or facts in issue to which it is allegedly relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
(c)If propensity evidence is allegedly relevant to more than one fact in issue, the evaluation of the probative value of the propensity evidence must be carried out separately in relation to each fact in issue.
(d)The probative value of propensity evidence in relation to one fact in issue may differ from its probative value in relation to another fact in issue. It is appropriate to assess the different value of propensity evidence in relation to different facts in issue in deciding whether, having regard to the nature and significance of those facts in issue, the propensity evidence has significant probative value, either generally or for a specific or limited purpose, at the trial of the relevant offence or offences.
Some other points may be made:
(a)The question of whether propensity evidence has significant probative value can only have one correct answer, although reasonable minds may sometimes differ as to the answer. An appellate court must determine for itself whether propensity evidence possesses significant probative value as distinct from merely determining whether it was open to the primary judge to arrive at his or her conclusion. See R v Bauer (a pseudonym).[7]
(b)Propensity evidence will have probative force if it increases the probability that the accused committed the charged acts, including by the capacity of the propensity evidence to support the credibility of a State witness's account of the charged acts. See RMD [52].
(c)The concept of propensity evidence and whether propensity evidence has significant probative value must not be undertaken by focusing on each item of propensity evidence separately and without regard to the relevant context; namely, the fact or facts in issue at the trial and the other evidence (including the other propensity evidence) adduced or to be adduced at the trial. See Lilley [61].
(d)Section 31A substantially altered the common law. Propensity evidence is admissible under s 31A if the court considers that the test under each of the first and second limbs of s 31A(2) is satisfied. See Dair v The State of Western Australia.[8]
[7] R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56 [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
[8] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [59] (Steytler P).
In Dair [62] ‑ [67], Steytler P made these comments about the comparison which s 31A(2)(b) requires. First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value. Secondly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson v Johnson.[9]
[9] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).
In Dair [63], Steytler P accepted the statement by G Flatman QC and Dr M Bagaric, 'Non‑similar Fact Propensity Evidence: Admissibility, Dangers and Jury Directions' (2001) 75 ALJ 190, 199, that possible sources of prejudice that might be occasioned by the admission of propensity evidence at a criminal trial include:
(a)the jury might believe that the accused is guilty merely because he was a person likely to do the charged acts;
(b)the jury might tend to condemn the accused, not because he or she is guilty of the charged offence, but because the accused has escaped punishment for other offences; and
(c)the jury might become confused or distracted from deciding whether the accused is guilty of the charged offence because of the jury's concentration upon resolving whether the accused committed the acts the subject of the propensity evidence.
The High Court's decision in Roder
In Roder, the respondent was charged with 27 sexual offences against two children of his former domestic partner. The Director of Public Prosecutions (Vic) served a notice on the respondent, pursuant to s 97(1)(a) of the Evidence Act 2008 (Vic), stating an intention to adduce evidence at the respondent's trial that the respondent had a tendency to have a particular state of mind (namely, an improper sexual interest in the complainants and a willingness to act on that interest by engaging in sexual activity with them) and a tendency to act in a particular way (including using his position of trust, physical proximity to and relationship with the complainants to engage in sexual activity with each of them). The tendency notice included a table specifying 33 items of evidence that were said to support the alleged tendency. Six of the items related to alleged incidents involving the respondent and one or the other of the complainants that were not the subject of any of the charged offences (being the 'uncharged acts'). The other 27 items related to the incidents the subject of the charged offences (being the 'charged acts').
A judge of the County Court of Victoria ruled, prior to trial, that the jury would be directed that:
(a)before they could use the uncharged acts for tendency purposes, the jury must find that those acts had occurred (but his Honour did not identify any applicable standard of proof); and
(b)before they could use the charged acts for tendency purposes, the jury must find that the prosecution had proved beyond reasonable doubt that those acts had occurred.
The prosecution applied to the Court of Appeal of Victoria for leave to appeal against the judge's interlocutory decision. The Court of Appeal refused leave.
The prosecution's appeal to the High Court (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech‑Jones JJ) was allowed.
The High Court stated that tendency or propensity evidence is a 'special class' of circumstantial evidence [23]. Their Honours then referred to Hughes and Shepherd v The Queen[10] as follows [24]:
In Hughes v The Queen, the majority in this Court explained that with tendency evidence, '[t]he trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to [determining] the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue' (emphasis added) (Hughes v The Queen (2017) 263 CLR 338 at [16]; 92 ALJR 52). The process of reasoning involved is similar to the manner in which an assessment of the significant probative value of the evidence is undertaken by the trial judge for the purpose of determining its admissibility, namely, by first assessing the strength of the evidence in establishing the tendency and then considering 'the extent to which the tendency makes more likely the elements of the offence charged' (Hughes v The Queen (2017) 263 CLR 338 at [64]; 92 ALJR 52). In the language of Shepherd (Shepherd v The Queen (1990) 170 CLR 573 at 579; 65 ALJR 132), the tendency is an 'intermediate fact' that the prosecution seeks to establish and rely on as circumstantial proof of the elements of the offence. Unless the tendency is an 'intermediate fact' which is 'indispensable' to proof of guilt, it need not be proved beyond reasonable doubt (R v Dennis Bauer (a pseudonym) (2018) 266 CLR 56 at [86]; 92 ALJR 846, citing Shepherd v The Queen (1990) 170 CLR 573 at 584 ‑ 585; 65 ALJR 132).
[10] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573.
The High Court referred with approval at [26] to these observations of Basten AJA (Hamill and Dhanji JJ agreeing) in JS v The Queen[11] about how directions on tendency evidence should be formulated:
Insofar as the applicant complained that the reasoning [which the trial judge directed the jury to undertake] was 'incoherent' [or circular], this was premised on the assumption that the Crown, in a linear process, sought to prove the commission of an offence (at a standard of proof less than beyond reasonable doubt), and then relied on that finding to prove the tendency, and then relied on the tendency to prove the offence. However, this does not accurately represent the reasoning process involved. It is the tendency that is relied on as circumstantial evidence in proof of the charge on the indictment. The proper approach is to have regard to all the evidence ... relied on in proof of the tendency as evidence of the tendency alleged. To the extent that the jury is satisfied of the existence of the tendency, the tendency may be relied on in proof of the charge. Given this process, it is preferable not to direct a jury to make findings as to the conduct relied on in proof of a charge. Rather the jury should be directed with respect to finding the alleged tendency. (emphasis added)
[11] JS v The Queen [2022] NSWCCA 145 [43].
The High Court then made two points. First, Basten AJA correctly identified that the alleged tendency is an intermediate fact that must be proved in its own right and then deployed in aid of the proof of each charged offence. A finding by the jury that the alleged tendency has been proved to a lesser standard by relying upon, amongst other things, direct evidence of the charged acts, and then deploying that tendency in determining whether the prosecution has proved the charged acts beyond reasonable doubt, 'does not involve circular or incoherent reasoning'. Rather, it simply means that the jury may consider the same evidence 'at different stages of its deliberations with a different onus of proof and for a different purpose' [27]. See Rassi v The King.[12] Secondly, Basten AJA correctly said that a trial judge's directions to the jury should identify the evidence relied upon by the prosecution to support the alleged tendency and invite the jury to consider whether that tendency has been established. The balance of the trial judge's summing up to the jury should ensure that the burden and standard of proof are correctly understood and properly applied [28].
[12] Rassi v The King [2023] NSWCCA 119 [9] (Beech‑Jones CJ at CL; Button J agreeing).
The High Court held that the judge of the County Court had erred in ruling that the jury should be directed that 'to use the evidence of the charged acts for tendency purposes, the jury must find those charged acts proved beyond reasonable doubt' [31].
The respondent made an alternative submission to the High Court that the jury should be directed that, when considering the respondent's guilt for each particular charge, '[the jury] could not use the direct evidence of the corresponding charged act as part of the body of evidence relied on by the prosecution to support the alleged tendency' [32]. The High Court rejected that submission [33] ‑ [34]. Their Honours elaborated [35]:
In any event, this alternative submission overlooks the nature of tendency evidence and tendency reasoning as explained above. Tendency evidence has been described as evidence that on 'another occasion or occasions' different to the occasion the subject of a charge, the accused 'acted in a particular way' (IMM v The Queen (2016) 257 CLR 300 at [104]; 90 ALJR 529). If so described, the direct evidence of a particular charged act would not be admitted as tendency evidence in relation to that same charged act. However, as already explained (see [21] and [24]), any assessment of whether evidence relating to 'another occasion or occasions' to a particular charged act has significant probative value for the purpose of determining its admissibility as tendency evidence is to be undertaken 'having regard to other evidence', which includes the evidence of that charged act (Evidence Act, s 97(1)(b)). The jury's assessment of the weight or strength of the evidence involves similar reasoning.
The High Court set out the directions that should ordinarily be given as follows [37]:
[I]t follows from the nature of tendency evidence that, in a case where the prosecution relies on both uncharged and charged acts to establish an alleged tendency of the kind under consideration here, a single separate tendency direction should ordinarily be given. Such a direction should not direct or invite the jury to make findings in respect of charged conduct, but instead should indicate the evidence relied on to support the alleged tendency (JS v The Queen [2022] NSWCCA 145 at [43]; see also Jury Directions Act, s 27(3)(a)), direct the jury to consider whether they are satisfied of the alleged tendency and then advise the jury that, if they are so satisfied, they can use that tendency in considering whether it is more likely that the accused committed the specific offences with which he or she is charged. Careful directions should be given to the jury as to the requisite onus and standard of proof (Jury Directions Act, ss 61 ‑ 64) as well as to the contents of the elements of the offence and the need for separate consideration of each charge (MFA v The Queen (2002) 213 CLR 606 at [34]; 77 ALJR 139; JS v The Queen [2022] NSWCCA 145 at [44]).
The merits of the appeal
In the present case, the State contends that, at the material time, the appellant had a tendency to have 'a sexual interest in young female children of about 12 years of age and to act upon that sexual interest in public places, in circumstances that [are] brazen and give rise to a high risk of detection' (appeal ts 46 ‑ 47). That is the tendency which the State asserts the appellant had, at the material time, within the definition of 'propensity evidence' in s 31A(1) of the Evidence Act.
We are satisfied, for the following reasons, that the evidence which the State proposes to adduce at the trial in relation to the appellant's alleged tendency, taken at its highest from the perspective of the prosecution and considered in combination, is capable of establishing that, at the material time, the appellant had the alleged tendency.
First, there is a close temporal connection between the offence charged in count 2 and the offence charged in count 3.
Secondly, if the alleged offending charged in counts 2 and 3 occurred as alleged by the State, then all of the offending occurred in public places and in circumstances that were brazen and gave rise to a high risk of detection.
Thirdly, as to count 2, it is alleged that on 1 April 2023 the appellant attempted to indecently deal with KM who, at the time, was aged 12.
KM gave evidence that the appellant asked KM and other members of her group whether they 'wanted money or anything'. The appellant sat next to KM and offered her cannabis. He wanted KM to set him up with 'any woman at the Town Beach'. The appellant told KM and other members of her group to follow him to a public toilet. When they arrived at the toilet, the appellant repeatedly told KM and her friends to go into the toilet. He spoke mainly to KM and MC, but more to KM.
MC gave evidence that the appellant told KM, 'Come follow me … to the toilet. We go to the toilet, I'll do something'. The appellant also said, 'I want you there, [KM], to come in with me so I can do something to you'. Before they arrived at the toilet, the appellant offered KM an ounce of cannabis if she followed him into the toilet. When they arrived at the toilet, the appellant said, 'We're going to toilet, you first and I walk last'. MC refused.
GS gave evidence that the appellant spoke to KM, who was the oldest member of the group. He asked them to go into the toilet with him in exchange for cannabis and money. KM said that she could find the appellant a 'bigger girlfriend', but he said he wanted her.
ZW gave evidence that the appellant attempted to 'hook up' with KM. KM told the appellant that she was only a young girl, and that he should find an older woman. The appellant replied that he did not care, and that he just wanted a girlfriend. The appellant asked the group to help find him a girl, he offered them cannabis and he said he 'wanted' KM. The appellant said that he wanted KM to go into the toilet for sex.
Fourthly, as to count 3, it is alleged that on 15 April 2023 the appellant indecently dealt with CG who, at the time, was aged 13, in a public place.
CG gave evidence in her child witness interview that, at the shopping centre, as CG was standing up, the appellant went past her and 'grabbed [her] bum like that ‑ like touch … under [her] butt'. When she gave that description CG appears to have made a pinching motion with her hands. CG then described it as a 'touch under [her] butt'. The appellant grabbed her on the 'lower right bottom of the butt'. He 'sneakily walked past and then touched [her] bum like ‑ like a hook'. The appellant touched her 'Uh, like under [her] bum'.
Later in her child witness interview, CG described the incident as the appellant 'tapped [her] bum underneath', 'on the bottom of [her] bum ‑ right', '[o]n [her] shorts'.
In her pre‑recorded evidence, CG's answers to questions about her interaction with the appellant were generally consistent with the version of events she gave in her child witness interview.
Fifthly, the evidence to which we have referred concerning counts 2 and 3, taken at its highest from the perspective of the prosecution and considered in combination, is capable of persuading a jury, that:
(a)the appellant's alleged acts and words in relation to count 2 were deliberate and had a sexual motivation;
(b)the appellant's alleged act in relation to count 3 was deliberate and had a sexual motivation;
(c)at the material time, the appellant had a tendency to have a sexual interest in young female children of about 12 years of age; and
(d)at the material time, the appellant had a tendency to act upon that sexual interest in public places and in circumstances that were brazen and gave rise to a high risk of detection.
We are satisfied, for the following reasons, that the evidence which the State proposes to adduce at the trial in relation to the appellant's alleged tendency, taken at its highest from the perspective of the prosecution and considered in combination and in the context of the State's evidence as a whole, has significant probative value in the proof by the State of each of counts 2 and 3.
First, the alleged tendency is not formulated at a high level of generality. Rather, it is formulated with a reasonable degree of specificity.
Secondly, the appellant was born on 23 January 1988. At the time of the alleged offending he was aged 35 years. The vast majority of adult men do not have a sexual interest in young female children of about 12 years of age. The alleged tendency negates, to a significant or an important extent, any assumption which the jury might otherwise make that the appellant, like the vast majority of adult men, would not have a sexual interest in young female children of about that age.
Thirdly, the evidence does not merely show that the appellant had a sexual interest in young female children of about 12 years of age. The evidence also shows that the appellant was willing to act upon that sexual interest in public places and in circumstances that were brazen and gave rise to a high risk of detection. The evidence is significant or important in the evaluation of the likelihood of the appellant acting on that sexual interest by engaging or attempting to engage in sexually motivated conduct in a public place and in circumstances that were brazen and gave rise to a high risk of detection.
Fourthly, if the jury is satisfied beyond reasonable doubt, having regard to the evidence of KM and other members of her group, to the effect that the appellant offered KM cannabis to induce her to go into the toilet with him to 'do something', the appellant's alleged tendency makes it more likely, to a significant or an important extent, that:
(a)the appellant's intention, in connection with his alleged attempt to indecently deal with KM by inducing her to enter the toilet with him, was to engage in sexual behaviour with KM in the toilet in exchange for cannabis; and
(b)the appellant's alleged acts and words in relation to count 2 were in combination more than 'merely preparatory' to the commission of the offence of indecently dealing with a child under the age of 13 years, and were in combination said and done as steps in putting that intention into effect.
Fifthly, if the jury is satisfied beyond reasonable doubt, having regard to the evidence of KM and other members of her group, to the effect that the appellant offered KM cannabis to induce her to go into the toilet with him to 'do something', the appellant's alleged tendency makes it less likely, to a significant or an important extent, that an inference, consistent with innocence, is reasonably open in respect of the appellant's alleged acts and words in relation to count 2.
Sixthly, if the jury is satisfied beyond reasonable doubt, having regard to the evidence of CG, that the appellant's hand made contact with CG's buttock, the appellant's alleged tendency makes it more likely, to a significant or an important extent, that:
(a)the appellant's contact with CG's buttock was a deliberate, as distinct from an unwilled, act; and
(b)was sexually motivated,
and was therefore indecent.
Seventhly, if the jury is satisfied beyond reasonable doubt, having regard to the evidence of CG, that the appellant's hand made contact with CG's buttock, the appellant's alleged tendency makes it less likely, to a significant or an important extent, that:
(a)the appellant's contact with CG's buttock was inadvertent; and
(b)was not sexually motivated.
Eighthly, the strength of the evidence relied upon by the State to establish the appellant's alleged tendency is reasonably high on all aspects of the alleged tendency.
We are satisfied, for the following reasons, that the probative value of the evidence which the State proposed to adduce at the trial in relation to the appellant's alleged tendency, compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt on each of counts 2 and 3 must have priority over the risk of an unfair trial.
First, contrary to counsel for the appellant's submission, there is no reasonable possibility that the jury, properly directed, may 'borrow proof of elements of each count from the other'. The evidence of the appellant's alleged tendency does not require the State to 'borrow proof' from one count for use in the other.
Secondly, contrary to counsel for the appellant's submission, there is no reasonable possibility that the jury, properly directed, will reason that they cannot draw any conclusions as to the appellant's state of mind in relation to the incident the subject of count 2 or the incident the subject of count 3, but may impermissibly draw inferences about the appellant's character from his 'association' with the charged offences.
Thirdly, counsel for the appellant's submission that the evidence 'in both cases' is 'particularly weak' fails to have regard to the requirement that circumstantial evidence must be assessed as a whole and not on a piecemeal basis. Further, as we have mentioned, the strength of the evidence relied upon by the State to establish the appellant's alleged tendency is reasonably high on all aspects of the alleged tendency. For example, on our assessment of CG's evidence as a whole, it is not correct to characterise the appellant's contact with her buttock as merely a 'fleeting tap'.
Fourthly, it will be necessary for the trial judge to give directions to the jury in relation to the propensity evidence having regard to the specific circumstances of the appellant's alleged tendency and the whole of the evidence adduced at the trial. The directions will be crafted to ensure that any impermissible prejudice to the appellant arising from the admissibility of the propensity evidence is overcome or guarded against.
Fifthly, for example, during the trial judge's summing up to the jury:
(a)The jury will be given directions in relation to the propensity evidence in accordance with Roder, including directions about the drawing of inferences and about the burden and standard of proof in deciding whether at the material time the appellant had the alleged tendency.
(b)The jury will be directed about the use which the jury may make (and must not make) of the propensity evidence.
(c)The jury will be directed that their verdict on one count does not need to be the same as their verdict on any other count.
(d)The jury will be directed that no adverse inference may be drawn against the appellant arising from the indictment containing more than one count.
(e)The jury will be directed about the burden and standard of proof in deciding whether each charged offence has been proved; the contents of the elements of each charged offence; and the necessity for separate consideration of each charged offence.
(f)The jury will be directed that they must not convict the appellant of any of the counts unless the State has proved beyond reasonable doubt each of the elements of the count they are considering.
Sixthly, the required directions are not of such complexity as to be beyond the capacity of a jury to understand and apply. The jury will be capable of performing the function required of them.
In our opinion, the propensity evidence sought to be relied upon by the State in the present case is admissible in respect of counts 2 and 3. Consequently, there is no relevant impermissible prejudice to the appellant from the joint trial of counts 2 and 3 because if the appellant were to be tried on counts 1 and 2 separately from count 3 the jury in each separate trial would still hear the propensity evidence. Severance is not required to ensure that the appellant receives a fair trial. The directions that the trial judge must give will be sufficient to overcome or guard against any impermissible prejudice to the appellant arising from the admissibility of the propensity evidence. As we have already noted, the jury will be capable of understanding and applying those directions.
The primary judge was correct in granting the State's application for an order in relation to s 31A of the Evidence Act and dismissing the appellant's application for severance.
The ground of appeal fails.
Conclusion
For these reasons, the court ordered on 22 August 2024 that leave to appeal be granted and the appeal be dismissed.
MITCHELL JA:
On 22 August 2024, this court dismissed the appellant's appeal against an order made by the primary judge refusing the appellant's application for separate trials. We said that we would give reasons for making those orders later. These are my reasons for joining in making those orders.
Background
The appellant is charged with the following three offences, which have been joined in the one indictment:
1.On 1 April 2023 at Broome, the appellant offered to supply a prohibited drug, namely cannabis, to a child; contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA).
2.On 1 April 2023 at Broome, the appellant attempted to indecently deal with KM, a child under the age of 13 years; contrary to s 320(4) and s 552 of the Criminal Code (WA) (Code).
3.On 15 April 2023 at Broome, the appellant indecently dealt with CG, a child of or over the age of 13 years and under the age of 16 years, by touching her buttock; contrary to s 321(4) of the Code.
The amended statement of material facts identifies the following circumstances of the alleged offending charged in counts 1 and 2.
On 1 April 2023, the appellant was at a shopping centre near Town Beach in Broome. At around 4.00 pm, the appellant entered a laundromat and engaged the 12-year-old complainant, KM, in a conversation and asked her to sit down next to him, which she did. KM's friends, who were aged 9 - 10 years, were standing nearby. The appellant offered KM cannabis and money to help him find a girlfriend. The appellant and KM then left the laundromat together and KM's friends followed behind. The appellant asked KM to get into a taxi with him, but she declined. The appellant walked with KM and her friends away from the shopping centre towards a public toilet block. The appellant then tried to get KM to go into the toilet block with him. When KM refused, the appellant repeatedly offered her cannabis to go inside the toilet block with him. The appellant encouraged KM to go into the toilet block so that he could sexually offend against her. KM continued to refuse, then told the appellant she was going to report him to a security guard. KM and her friends then ran back to the shopping centre and complained to the security guard. The appellant was arrested several hours later and found to have 3.2 g of cannabis in his pocket.
The amended statement of material facts identifies the following circumstances of the alleged offending charged in count 3.
At about 2.30 pm on 15 April 2023, the appellant was at a shopping centre located in Broome. The 13-year-old complainant, CG, was inside the shopping centre with her friend, her brother and some of his friends. CG and the rest of her group saw the appellant walk past several times, staring at them and their belongings. Later, CG was standing near a cafe in the shopping centre with her friend, while CG's brother and his friends sat at a table nearby. The appellant walked past CG from behind and briefly squeezed CG's right buttock with his right hand before continuing towards the exit. CG became distressed and immediately told her friend and brother what the appellant had done.
Evidence to be relied on by the prosecution at trial includes child witness interviews conducted with KM and three of the friends with her at the time of the offending alleged in counts 1 and 2. Those friends were MC (aged 10 years), GS (aged 9 years) and ZW (aged 10 years). Those child witness interviews were conducted on 4 - 6 April 2023. The prosecution also relies on a child witness interview with CG conducted on 15 April 2023.
Evidence of KM, MC, GS, ZW and CG was pre-recorded on 15 May 2024 and 16 May 2024.
On 7 June 2024, the appellant applied for orders that he be tried on counts 1 and 2 on the indictment separately from count 3. That application was made pursuant to s 133(3) of the Criminal Procedure Act 2004 (WA). On 18 June 2024, the respondent applied for an order that the evidence in relation to counts 2 and 3 was cross-admissible as propensity evidence and/or relationship evidence, as defined in s 31A of the Evidence Act 1906 (WA). Those applications were heard by the primary judge on 23 July 2024. The applications were argued on the basis that the success or failure of the s 31A application would determine the fate of the application for separate trials.
On 29 July 2024, the primary judge ruled that the respondent's application for the evidence to be cross-admissible should be granted so that the application for separate trials fell away.
On 5 August 2024, the appellant appealed against the primary judge's decision to refuse his application for separate trials, under s 26 of the Criminal Appeals Act 2004 (WA). Given the trial was listed to commence on 26 August 2024, an urgent appeal order was made, and the appeal was heard on 20 August 2024. The court made orders dismissing the appeal, for reasons to follow, on 22 August 2024. I note that the trial in August 2024 was subsequently aborted due to illness of counsel. At the time of publishing these reasons, a new trial is listed to commence on 12 May 2025.
Approach on this appeal
The sole ground of appeal is that:
The primary judge erred in exercising his discretion under s 133(3)(a) of the Criminal Procedure Act 2004 by refusing to order that counts 1 and 2 on the indictment be tried separately from count 3.
Particulars
a) The primary judge erred in concluding that the evidence in respect of count 2 is admissible in respect of count 3 as evidence of a tendency that the appellant has or had, pursuant to s 31A of the Evidence Act 1906.
b) The primary judge erred in concluding that the evidence in respect of count 3 is admissible in respect of count 2 as evidence of a tendency that the appellant has or had, pursuant to s 31A of the Evidence Act 1906.
c) By reason of (a) and (b), the primary judge's exercise of the discretion in s 133(3)(a) of the Criminal Procedure Act 2004 miscarried.
I will proceed on the assumption, which has been made by the parties in the District Court and on appeal, that the outcome of the application for separate trials turns on whether the evidence on each of counts 2 and 3 is admissible on the trial of the other count under s 31A of the Evidence Act. It is ordinarily essential to resolve the issue of cross-admissibility in determining whether or not an order for separate trials should be made on the basis that an accused will be unfairly prejudiced by a joint trial.[13] It is well-established that the correctness standard of appellate review applies to a decision as to whether evidence is admissible under s 31A of the Evidence Act. It is therefore unnecessary to set out the primary judge's reasoning as to why his Honour concluded that the evidence on each of counts 2 and 3 was admissible on the other count under s 31A of the Evidence Act. This court must make its own assessment of that matter.
[13] The State of Western Australia v JHN [2021] WASCA 225; (2022) 59 WAR 143 [88] - [90].
This court does have the advantage that the significant evidence at trial, being that of the child witnesses, has already been recorded. I have considered the transcripts of that evidence, which it is unnecessary to set out in detail, in determining this appeal.
Propensity evidence: general principles
The following statement of general principles is largely derived from the decision of this court in KHA v The State of Western Australia.[14]
[14] KHA v The State of Western Australia [2022] WASCA 173 [23] - [37].
Evidence of sexual conduct which is not the subject of the charged offence may be admitted in some circumstances to prove a propensity of the accused to commit offences of the kind charged. That is, the evidence may be relied on to show that the accused is a particular kind of person and, on that account, is more likely to have committed the charged offence. In addition, propensity evidence may be adduced for the purpose of inviting the jury to reason that the fact that the accused has done something similar to the charged offence on one or more occasions makes it more likely that the accused committed the charged offence.[15]
[15] See HTN v The State of Western Australia (No 2) [2022] WASCA 51; (2022) 298 A Crim R 337 [97] - [106].
At common law, evidence is not admissible if the only purpose of its tender is to show that the accused had a propensity or disposition to commit crimes, or crimes of a particular kind, or that he or she was the sort of person likely to commit a charged offence.[16] In Western Australia, the admission of evidence for the purpose of proving propensity falls to be determined under s 31A of the Evidence Act. 'Propensity evidence' is defined by s 31A(1) to mean:
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had[.]
In the present case, the propensity evidence sought to be adduced by the State is of a tendency that the appellant had at the time of committing the charged offences.
[16] HTN [91].
Section 31A(2) of the Evidence Act sets out the circumstances in which propensity evidence may be admitted in the following terms:
Propensity evidence … is admissible in proceedings for an offence if the court considers —
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
General principles governing the admission of evidence under s 31A of the Evidence Act are set out in a number of decisions of this court.[17] They were summarised in the passage of RMD v The State of Western Australia set out at [122] of the joint reasons in the present case.[18]
[17] La Bianca v The State of Western Australia [2019] WASCA 105 [21] - [26], [143] - [146]; NDY v The State of Western Australia [2020] WASCA 172 [47] - [59]; The State of Western Australia v JHN [2021] WASCA 225; (2022) 59 WAR 143 [114] - [120].
[18] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185].
Mere proof that an accused has a sexual interest in a class of persons into which the complainant falls will not usually have significant probative value as to whether the accused committed a charged sexual offence against the complainant. That is, the mere fact that an accused has a motivation to commit a charged sexual offence does not ordinarily give evidence of sexual interest, in persons such as the complainant, significant probative value. Generally, it is the accused's tendency to act on the sexual interest which gives propensity evidence its significant probative value in showing that the accused was more likely to have committed the charged offence.[19]
[19] McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 [27]; The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [63].
In considering whether evidence of other sexual conduct has 'significant probative value', a distinction is usually drawn between:
1.evidence of other sexual conduct directed towards the complainant in relation to the charged offence; and
2.evidence of other sexual conduct directed towards third persons.
A complainant's evidence of an accused's other sexual conduct in relation to him or her may be admissible as propensity evidence in proof of a charged offence which the accused is alleged to have committed against that complainant. That is so whether or not the other sexual conduct has some special, particular or unusual feature. Evidence of other sexual conduct may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it. Evidence of that propensity may assist to eliminate doubts that might otherwise attend the complainant's evidence of the charged offence. This is on the basis of ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction, and the opportunity presents itself to do so again, he or she is likely to seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person (at least where the conduct is not too far separated in point of time).[20]
[20] R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56 [48] - [51].
By contrast, for evidence of other sexual conduct against a third person to have significant probative value, there must ordinarily be some feature of or about the other sexual conduct which links it with the charged offence. Absent such a feature of or about the offending, evidence that an accused has engaged in other sexual conduct against a third person proves no more about the charged offence against the complainant than that the accused has engaged in other sexual conduct directed towards a third person. The mere fact that an accused has engaged in other sexual conduct directed towards a third person is ordinarily not significantly probative of the accused having committed the charged offence against the complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way. Proof of that tendency may increase the likelihood that the complainant's account of the charged offence is true.[21]
[21] Bauer [58].
In Jackson, evidence of sexual interest by the accused in persons in the same class as the complainants, manifested by possession of child exploitation material, was held to have significant probative value on charges of indecent dealing.
In Jackson, the accused was charged with two counts of indecent dealing with two 12-year-old girls, by touching their buttocks with the back of his hand as he passed them in a supermarket aisle. He was charged on the same indictment with possessing and accessing child exploitation material. The child exploitation material depicted female children of the complainants' approximate age. The material was found on electronic devices in the accused's possession when he was arrested a few days after the alleged indecent dealing offences.
The court in Jackson was concerned with whether the indecent dealing charges should be tried separately from the child exploitation material charges. That turned on whether evidence relevant to the child exploitation material charges had significant probative value in relation to the indecent dealing charges for the purposes of s 31A of the Evidence Act, so as to be cross-admissible.
The court held that evidence relevant to the child exploitation material charges did not have significant probative value in proving that the accused in Jackson dealt with the complainants by touching their buttocks. Applying the principles noted above, the court held that it was insufficient that evidence relating to the child exploitation material charges demonstrated a sexual interest in children of or about the complainants' age. While the evidence was relevant, it was not significantly probative as to whether the alleged touching of the complainants' buttocks occurred.[22]
[22] Jackson [73] - [80].
However, the court noted that it was also necessary for the prosecution in Jackson to prove that touching the complainants on their buttocks was indecent. Indecency connoted conduct of a sexual character. Some conduct may be regarded as so offensive to common standards that it should be regarded as indecent of itself, regardless of the motivation for the conduct. However, the court said that brushing another person's buttocks with the back of the hand was not conduct of that character. It was accepted in Jackson that, to prove the alleged conduct was indecent, it was necessary for the prosecution to prove that the conduct was deliberate and sexually motivated.[23] The court said:[24]
The propensity evidence is cogent evidence that, at a time substantially contemporaneous with [the indecent dealing counts], the respondent had a sexual interest in pre-adolescent girls. The fact that the respondent had a sexual interest in pre-adolescent girls, manifested by viewing images at about the time of the contact, makes it more likely, to a significant extent, that in the objective circumstances in which the contact allegedly occurred, his contact with the buttocks of one or both of the complainants (who were pre-adolescent girls) was deliberate and sexually motivated. Jurors are told that, in evaluating evidence and in making findings, they should use their common sense and their experience of life. Whether or not invited to do so, jurors are likely to assess competing versions of events or conduct by reference to their ideas of normal or predictable behaviour. In our view, the same is true of a jury's assessment of the inferences to be drawn as to a person's state of mind when acting in a particular manner. In evaluating whether they are satisfied as to a sexual motivation, the jury would, absent the propensity evidence, proceed on the assumption, based on common experience, that the vast majority of adult men do not have a sexual interest in pre-adolescent girls. Applying that assumption to the facts of the touching, as the jury found them to be, may leave the jury in doubt as to whether the touching was sexually motivated. The propensity evidence, if accepted, would replace this assumption with a finding that the respondent had, at a time substantially contemporaneous with the touching, a sexual interest in pre-adolescent girls. In this manner, the propensity evidence may well resolve any doubts the jury might have as to whether the respondent's touching of each complainant's buttocks with the back of his hand was deliberate, sexually motivated, conduct. Further, the jury may well think it an unlikely coincidence that an adult man engaging in this conduct with a 12-year-old girl inadvertently or for reasons which are not sexual would happen to have a sexual interest in girls of that age manifested in the manner alleged by [the child exploitation material charges]. (citation omitted)
[23] Jackson [56] - [59], [71] - [72].
[24] Jackson [61].
Jackson was applied by a majority of this court in MNA v The State of Western Australia.[25] In MNA evidence of the accused attempting, during electronic communications, to procure young teenage girls to engage in sexual activity online was found to have significant probative value on charges of indecent dealing with a child under the age of 13 years. The alleged touching occurred while the accused was sitting on a couch watching movies. Although some of the alleged touching was, on the complainant's account, clearly indecent, the defence case left open the issue of whether inadvertent touching, which was not sexually motivated, may have accidently occurred during 'horseplay'. The majority held that the impugned evidence had significant probative value in relation to whether the touching was deliberate and sexually motivated. However, the evidence did not have significant probative value on the issue of whether the touching occurred.[26]
[25] MNA v The State of Western Australia [2020] WASCA 84 [69] - [76].
[26] MNA [76], [87] - [89].
The above general principles as to the admission of propensity evidence have not been varied by the recent decision of the High Court in Director of Public Prosecutions v Roder (a pseudonym).[27] Roder concerned the directions which should be given to a jury as to how they should deal with propensity evidence in a case where the evidence had been admitted at trial. The development of the law in Roder is relevant to the assessment of how a jury may use the evidence at trial and in that way is relevant to the assessment of significant probative value. As to those directions, the High Court adopted the following observations of Basten AJA in JS v The Queen:[28]
It is the tendency that is relied on as circumstantial evidence in proof of the charge on the indictment. The proper approach is to have regard to all the evidence of relied on in proof of the tendency as evidence of the tendency alleged. To the extent that the jury is satisfied of the existence of the tendency, the tendency may be relied on in proof of the charge. Given this process, it is preferable not to direct a jury to make findings as to the conduct relied on in proof of a charge. Rather the jury should be directed with respect to finding the alleged tendency.
[27] Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644.
[28] JS v The Queen [2022] NSWCCA 145 [43], adopted in Roder [26] - [27].
The High Court concluded with the following observations as to the way in which the jury should be directed in relation to the use of propensity evidence:[29]
[I]t follows from the nature of tendency evidence that, in a case where the prosecution relies on both uncharged and charged acts to establish an alleged tendency of the kind under consideration here, a single separate tendency direction should ordinarily be given. Such a direction should not direct or invite the jury to make findings in respect of charged conduct, but instead should indicate the evidence relied on to support the alleged tendency, direct the jury to consider whether they are satisfied of the alleged tendency and then advise the jury that, if they are so satisfied, they can use that tendency in considering whether it is more likely that the accused committed the specific offences with which he or she is charged. Careful directions should be given to the jury as to the requisite onus and standard of proof as well as to the contents of the elements of the offence and the need for separate consideration of each charge. (citations omitted)
[29] Roder [37].
Disposition
In the present case the 'propensity evidence' which the State intends to adduce at trial under s 31A of the Evidence Act is evidence that, at the time of the alleged offending, the appellant had the tendency to have a sexual interest in young female children aged about 12 years and to act on that sexual interest in public places in circumstances that were brazen and gave rise to a high risk of detection. This is a refinement of the tendency alleged before the primary judge.
The evidence on which the State relies to establish that tendency is:
(a)the evidence of KM, MC, GS and ZW which, taken at its highest in the prosecution's favour, establishes that, on 1 April 2023 at Broome, the appellant invited 12-year-old KM to go into a public toilet block with him to receive some cannabis, with the intention of engaging in sexual behaviour with her in the toilet block; and
(b)the evidence of 13-year-old CG that, on 15 April 2023 at Broome, the appellant grabbed her buttock as he walked past her in a public shopping centre.
The first question is whether the propensity evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value (s 31A(2)(a) of the Evidence Act). In addressing this question, it is necessary to assess:
(a)the strength of the evidence in establishing the alleged tendency; and
(b)the extent to which the alleged tendency makes more likely the facts constituting the charged offence.[30]
[30] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [41], [64].
In the present case the strength of the proposed evidence, considered as a whole, in establishing the alleged tendency is relatively high. While there are some inconsistencies between the accounts given by the child witnesses of events on 1 April 2023, all of the accounts are to the effect that the appellant sought to entice KM into a public toilet block with the promise of being given cannabis. According to those accounts, the appellant either stated that he wanted to, or it may readily be inferred that he intended to, engage in sexual conduct with KM if she went into the toilet block with him. The appellant engaged in this conduct in the presence of five other children in a populated public place with a security guard nearby. The place to which he sought to entice KM was a public toilet block which, although it might offer some degree of privacy, was a place to which members of the public could enter without notice. The appellant indicated that he wanted to engage in sexual activity with KM after being told her age.
The incident on 15 April 2023 involved touching the buttock of a 13-year-old girl in the public area of a shopping centre. While evidence of the appellant's conduct on 15 April 2023, considered in isolation, provides relatively weak support for the existence of the alleged tendency, the evidence is not to be considered in isolation. Rather, in considering whether the propensity evidence has significant probative value it is necessary to consider the strength of the propensity evidence as a whole, having regard to other evidence adduced or to be adduced in the trial.
To prove count 2, the charge of attempted indecent dealing, in the circumstances of this case, it will be necessary for the prosecution to prove the following elements of the offence:[31]
1.The appellant intended to touch KM indecently in the public toilet block.
2.The appellant invited KM to come into the public toilet block with him to receive some cannabis.
3.The appellant invited KM to come into the public toilet block with him for the purpose of touching her indecently.[32]
4.When he invited KM to come into the public toilet block with him, the appellant believed that KM was a child under the age of 13 years.[33]
5.The appellant inviting KM to come into the public toilet block with him was more than merely preparatory to the commission of the offence of indecently dealing with a child under the age of 13 years.
[31] See the definition of 'attempt' in s 4 of the Code read with s 320(4) of the Code.
[32] This will establish that the appellant began 'to put his intention into execution by doing' the act of inviting KM to come into the toilet block with him, within the meaning of s 4 of the Code.
[33] See s 320(1) of the Code. In the case of an attempt, it is the accused's belief as to the age of the child rather than the actual age of the child which must be proven.
The State does not contend that the propensity evidence has significant probative value in proving the second, fourth or fifth of these elements. However, it in effect contends that the propensity evidence makes it more likely, to a significant extent, that the appellant had the intention constituting the first element and acted for the purpose identified in the third element.
To prove count 3, the charge of indecent dealing, in the circumstances of this case, it will be necessary for the prosecution to prove the following elements of the offence:
1.CG was a child of or over the age of 13 years and under the age of 16 years on 15 April 2023.[34]
2.The appellant touched[35] CG's buttock with his hand.
3.That touching was deliberate.[36]
4.That touching was indecent which, in the circumstances of this case, would require the prosecution to prove either that the touching was inherently indecent or that the touching was sexually motivated.[37]
[34] See s 321(1) of the Code.
[35] Under s 319(1) of the Code, the term 'deals with' in s 321(4) of the Code includes doing any act which, if done without consent, would constitute assault. Under s 222 of the Code a person who touches the person of another without his or her consent is said to assault that other person and the act is called an assault.
[36] So that touching CG's buttock was not an act occurring independently of the appellant's will, within the meaning of s 23A of the Code.
[37] See Jackson [55] - [59].
The State does not contend that the propensity evidence has significant probative value in proving the first or second of these elements. However, it contends that the propensity evidence makes it more likely, to a significant extent, that the touching, if it occurred, was deliberate and sexually motivated.
In my view, the alleged tendency, if established, does make it more likely, to a significant extent, that:
(a)the appellant intended to touch KM indecently and invited her into the public toilet block for that purpose (in the case of count 2); and
(b)touching CG's buttock was a deliberate and sexually motivated act by the appellant (in the case of count 3).
In effect, the significance of the tendency in the case of both counts 2 and 3 is to make it more likely that the charged physical conduct was sexually motivated. The significance of the tendency in proving the appellant's mental state is twofold. First, it tends to rebut the common assumption which the jury are likely to make that the vast majority of adult men do not have a sexual interest in pre-adolescent girls. That is, it has significant probative value for the reasons explained in Jackson.[38] Secondly, existence of the tendency can inform the jury's assessment of the likelihood of the appellant engaging in conduct in a public place in a brazen manner in circumstances where the risk of detection was high. That is, it has significant probative value for reasons analogous to those explained in Hughes.[39]
[38] Jackson [61] - [64].
[39] Hughes [57].
The second basis on which the evidence has significant probative value which I have noted in the previous paragraph could support an argument that the evidence has significant probative value in relation to whether the appellant committed the charged offences. However, that is not the way in which the State put its case on appeal, which was that the evidence had significant probative value only in relation to the mental elements of the charged offences. Given the limited way on which the State's case was framed, it is sufficient to conclude (as I do) that the propensity evidence in this case has significant probative value in relation to the facts referred to at [212] above. It strongly supports proof of a tendency which strongly supports proof of those facts which are elements of the offences charged in count 2 and count 3 of the indictment.[40]
[40] Hughes [41].
In my view the risk of an unfair trial, through the jury using the propensity evidence for an improper purpose, can be addressed by a direction by the trial judge. On the limited basis on which the State contended that the evidence had significant probative value in this appeal, the direction should include (in addition to standard matters) the following components:[41]
1.Identify the State's contention that the appellant has the tendency to have a sexual interest in young female children aged about 12 years and to act on that sexual interest in public places in circumstances that were brazen and gave rise to a high risk of detection.
2.Identify the evidence on which the State relies to establish the alleged tendency.
3.Instruct the jury to consider whether they are satisfied that the appellant had the alleged tendency in April 2023.
4.Direct the jury that, if they are satisfied that the appellant had the alleged tendency at that time, they can take that tendency into account, together with all other relevant evidence that the jury accepts, in considering whether the only reasonable inference is that the appellant had the mental states referred to at [212] above.
5.Direct the jury that this is the only way in which evidence of the alleged tendency can be used and the jury must not use the evidence for any other purpose. In particular, the jury must not have any regard to evidence of the alleged tendency in considering whether the appellant did the alleged physical acts constituting the charged offences.
[41] This is a direction of the kind identified in Jackson [81], modified to take account of the High Court's observations in Roder [37].
I consider that the significant probative value of the evidence identified above compared to the degree of risk of an unfair trial (which can be ameliorated by a direction of the kind referred to above) is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial (s 31A(2)(b) of the Evidence Act).
I am therefore satisfied that the propensity evidence identified by the State is admissible in proceedings for the offence charged in count 2 and the offence charged in count 3. As the evidence, which is said to be likely to prejudice the appellant, was admissible on both counts, the primary judge could not be satisfied that the appellant was likely to be prejudiced in the trial of the indictment because it contained two or more charges, within the meaning of s 133(3) of the Criminal Procedure Act. In those circumstances the primary judge was correct to dismiss the appellant's application for separate trials. The appeal against the refusal of the appellant's application for a separate trial on counts 1 and 2, and on count 3, must therefore be dismissed.
It is unnecessary to consider whether, even if (contrary to my view) evidence on count 2 was not admissible on count 3, a direction by the trial judge could guard against the likelihood of prejudice to the appellant so that it would have been inappropriate to order the separate trial of those charges under s 133(3) of the Criminal Procedure Act.
Orders
For the above reasons, on 22 August 2024, I joined in the making of orders granting leave to appeal and dismissing the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable President Buss
31 OCTOBER 2024
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