Dann v The State of Western Australia

[2021] WASCA 15

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   DANN -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 15

CORAM:   QUINLAN CJ

MITCHELL JA

HALL J

HEARD:   16 NOVEMBER 2020

DELIVERED          :   2 FEBRUARY 2021

FILE NO/S:   CACR 197 of 2019

BETWEEN:   TIMOTHY EDWARD DANN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   HERRON DCJ

File Number            :   KAL IND 95 of 2018

Catchwords:

Criminal law – Appeal against conviction – Sexual offences – Evidence of an uncharged act of sexual touching earlier the same night – Evidence not led as propensity evidence but as circumstantial evidence relevant to whether accused had a sexual interest in the complainant at the relevant time – Whether trial judge erred in giving a propensity direction – Whether trial judge erred in not directing the jury as to the weight to be given to the evidence

Legislation:

Evidence Act 1906 (WA), s 31A

Result:

Extension of time refused
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Ms S H King
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Legal Aid WA
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

GBF v The Queen [2020] HCA 40

Hill v The State of Western Australia [2019] WASCA 209

Johnson v The Queen [2018] HCA 48; (2018) 266 CLR 106

R v Dolan (1992) 58 SASR 501

The Queen v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56

JUDGMENT OF THE COURT:

1. This is an appeal against conviction.

2. The appellant was convicted after trial of one count of sexual penetration without consent contrary to s 325 of the Criminal Code (WA) and one count of attempted sexual penetration without consent contrary to s 325 and s 552 of the Criminal Code. On 24 May 2019 he was sentenced to a total effective sentence of 5 years 8 months immediate imprisonment.

3. An appeal notice was not filed until 18 December 2019, accordingly an extension of time is required. A delay of approximately five months is significant. The delay in this case has not been adequately explained. However, the respondent does not oppose the granting of an extension. An extension of time should be granted if not to do so would result in a miscarriage of justice. It is necessary, therefore, to consider the merits of the appeal.

4. There is a single ground of appeal. In essence the ground asserts that the learned trial judge misdirected the jury as to what use could be made of an incident of sexual touching that occurred earlier on the night that the offences occurred. It was not disputed, either at the trial or on appeal, that the evidence was admissible as circumstantial evidence because it was capable of showing that the appellant had a sexual interest in the complainant at the relevant time and that his advances had been rejected by the complainant. The evidence was relevant both to whether the acts constituting the offences had occurred and whether they had occurred without the consent of the complainant. The ground alleges that the trial judge erred by giving a propensity direction in respect of this evidence when it was not admitted for that purpose. It is also suggested that the significance of the evidence was small and the jury should have been directed accordingly.

5. The directions given by the trial judge in respect of the relevant evidence did not invite the jury to engage in propensity reasoning. That is, it was not suggested to the jury that they could use the evidence of the earlier touching incident to reason that the appellant was the type of person who would commit offences of the kind alleged because he had some tendency or propensity to do so. Rather, the jury were instructed that they could use the evidence as circumstantial evidence relevant to the issues referred to above. The weight to be accorded to that evidence was a matter for the jury. Accordingly the ground of appeal is without merit, the extension of time should be refused and the appeal should be dismissed. Our reasons for coming to those conclusions are as follows.

Prosecution case

1. The prosecution case was that on 11 May 2018 the complainant was at a house in a regional town with various members of her extended family. The appellant lived at the house. The complainant had known the appellant since she was a child and considered him her uncle, though they were not particularly close. She had seen him on only a handful of occasions because she usually lived in Perth.

2. During the evening the complainant was drinking with the rest of her family. They shared two bottles of bourbon mixed with coke. Some of those present were also smoking cannabis and the complainant participated in that use. The appellant was also drinking alcohol that night. He had been drinking all day and night and he was very drunk by the evening.

3. On two occasions early in the night the appellant walked past the complainant and deliberately squeezed or touched her bottom. On each occasion the complainant yelled at the appellant, telling him not to touch her or to get away from her.

4. Towards the end of the evening the complainant was feeling drunk and affected by cannabis so she spoke to her female cousin who was present, who told her to stay over. Whilst the complainant had been to the house before she had not stayed there and had not been to any of the bedrooms. She laid down on a couch in the living room.

5. The next thing that the complainant remembered was being on a mattress on the floor in one of the bedrooms at the back of the house. She could not remember how she got there. The appellant was present and he laid down on top of her and attempted to kiss her.

6. The complainant was shocked and froze, not responding in any way. The appellant then told her to take her pants off and she told him 'no' repeatedly. He tried to take her pants off and, despite her protests, managed to pull them down. He then pulled his own pants down and penetrated her vagina with his penis.

7. The appellant then flipped the complainant onto her stomach and tried to penetrate her anus with his penis. However at this point the complainant managed to roll over and push the appellant off. She pulled up her pants and ran from the room out a sliding door. She ran down the street and around the corner to where her sister lived.

8. Initially the complainant did not speak to anyone about what had occurred. However the following day she was in town with her sister and a friend and saw the appellant walk past on the street. Seeing him made her panic and feel upset. She started to cry and ran through the backstreets of town until she got to the house of her aunty, where she was staying. A short time later the complainant's aunty returned home and the complainant told her aunty that the appellant had raped her. The aunty took the complainant to hospital to be examined and reported the matter to the police.

9. The next day, 13 May 2018, police went to the appellant's house and arrested him. When interviewed he admitted that he had been at the house on 11 May 2018 with various members of his extended family, including the complainant. He told police that he had sold some gold that he had found when prospecting and so had money to buy alcohol. He said that he had been drinking all day, a combination of bourbon and coke, and beer, and that by the evening he was really drunk, being 10 on a scale of one to 10. He did not remember speaking to the complainant at all that night and said that although she was his niece he did not know her well because she usually lived in Perth. He said that later that night he was lying on a mattress in the bedroom with the complainant but could not remember having sex with her. He said that alcohol tends to make him black out particularly when he binge drinks, as he did on this day and night. Whilst he did not specifically deny having sex with the complainant, he said that he just could not remember the things that she said happened.

Defence case

1. It was not disputed at trial that the appellant and the complainant were together in the house on the night of 11 May 2018 and the early hours of 12 May 2018. Nor was it disputed that the appellant and the complainant were together in his bedroom sometime later that night. What was in issue was whether the act of sexual penetration and the attempted act of sexual penetration occurred and, if so, whether they occurred without the consent of the complainant. It was also suggested that another possible issue was whether the appellant had an honest and reasonable mistake as to whether the complainant had consented.

2. The defence case was that the appellant could not recall if he had sexual intercourse with the complainant. This was due to his level of intoxication at the time, something that he told the police officers when interviewed. Vaginal swabs did not reveal the presence of the appellant's DNA and the appellant had no memory of what occurred in his bedroom. Accordingly, the prosecution case critically depended on the evidence of the complainant. The defence case was that even if the State were able to prove beyond reasonable doubt that the sexual acts occurred it was not possible to prove beyond reasonable doubt that they occurred without consent.

Complainant's evidence

1. The complainant was 19 years old when she gave her evidence and 18 years old as at 11 May 2018. At that time she was living with her aunty in the regional town. She knows the appellant as an uncle though he is not her biological uncle. She had known him all her life, though she had hardly spent any time with him and did not consider that they were close.[1]

   [1] ts 58.

2. On the evening of 11 May 2018 the complainant went to a house where the appellant was living with other members of her family. Before going to the house she had drunk a few Jim Beam and Jack Daniels with coke. She said that she was feeling tipsy. She recalled the appellant being at the house when she arrived. She continued to drink Jim Beam and coke. Everyone else was also drinking alcohol. One of her relatives had mixed some Jim Beam and coke together in a bottle and the bottle was being passed around. She said that she also had about two to three puffs of cannabis. Although she could not remember the names of all of those who were present, there were about seven to eight people there. People were coming and going during the course of the evening.[2]

   [2] ts 62 ‑ 65.

3. The complainant said that she did not speak to the appellant that evening. She was then asked:[3]

   [3] ts 65.

   Did you notice anything about the way he was behaving?---Yes.

   What did you notice? Take your time, [C]?---I did notice that he was staring and stuff.

   What was he staring at?---Me.

   Okay. And how was he staring at you? Can you describe it?---Just – just staring like – like a pervert.

   Okay. How did it make you feel?---It made me feel weird.

   And did [the appellant] do anything else to you other than stare at you while you were hanging out at the party?---He grabbed my bum.

   How many times did he do that?---Two times.

   Okay. And when he grabbed your bum, how did he grab your bum?---He just – I guess just with his hand, swiping it across.

   Okay. Did he do anything other than swiping his hand across?---Yes, no. That was it. Just doing that.

   And when he grabbed or swiped your bum, did you say anything to him?---Yes.

   What did you say?---I – I told him to piss off - - -

   Okay?--- - - - and I was very angry and mad that night.

   Okay. Did he say anything to you after you told him to piss off?---I don't remember that part.

   Okay. Did you tell him to piss off on both of the occasions that he grabbed or swiped your bum?---Yes, I did.

   Okay. Did you tell anyone else at the house at the time that he was swiping your bum and staring at you like a pervert?---No, I didn't.

4. The complainant said that later that night the party was breaking up and people were leaving. The complainant stayed at the house because her aunty, who she had come with, had also decided to stay. The complainant spoke to her female cousin who was also at the house about staying the night. The complainant had never stayed at the house before or been in any of the bedrooms. After speaking to her cousin she went to lie down on a couch in the lounge room.[4]

   [4] ts 67.

5. Later that night the complainant found herself in one of the bedrooms of the house, though she could not recall how she had got there. She was lying on her back on a mattress on the floor. The appellant was also in the room. The door was closed. When she first saw the appellant he was on top of her kissing her. She was wearing a hoodie and some track pants at the time. She felt trapped and could not really move. He kissed her on the mouth but she did not return his kisses. The kissing continued for about two to three minutes. As this was occurring the appellant was saying some 'pretty filthy, nasty words' though she could not remember what they were. She said that the appellant told her to kiss him or kiss him back but she told him no. She said this probably four or five times. He pulled off her pants and she continued to say no. He then pulled his own pants down and inserted his penis into her vagina. This continued for one to three minutes. She did not consent but felt that she could not move and that she was still affected by the alcohol and cannabis.[5]

   [5] ts 68 ‑ 79.

6. The appellant turned the complainant over onto her stomach. He then attempted to insert his penis into her anus. At this point the complainant felt able to get up. She pushed him off and ran for the door. She ran to her cousin's house and stayed there that night. She felt really sick and lay on her bed crying before falling asleep. She did not tell her cousin what had happened because she felt too uncomfortable to speak about it.[6]

   [6] ts 80.

7. The following morning the complainant went with her cousin for a walk to the post office. She saw the appellant walk by but did not speak to him. Seeing him made her feel sick and she went back to her aunty's house where she had been previously staying. When her aunty returned home she told her aunty what had happened to her. Her aunty then took her to hospital where she was examined. She also spoke to the police about what had happened. Prior to this incident the complainant had not had sex with anyone before.[7]

   [7] ts 82 ‑ 84.

8. In cross‑examination it was put to the complainant that after making a bed up for herself in the lounge room she had gone to the toilet, encountered the appellant in the hallway outside his bedroom and that she and the appellant had kissed before entering his room. It was also suggested that she had willingly sat down on the mattress with the appellant in his room. She denied that any of this had happened. It was put to her that when the appellant laid on top of her and kissed her she did not say no. She responded by saying that she did yell out and say no. She denied that any lack of resistance was due to curiosity on her part as to what was happening. She said that it was because she was drunk and affected by cannabis. She accepted that she did not physically resist but said this was because she was scared. She denied that she was mistaken as to what occurred. She denied willingly having sex with the appellant.[8]

   [8] ts 105.

Other evidence

1. The other prosecution evidence in the trial was from the aunty regarding the complaint made to her, a police officer regarding the interview of the appellant and photographs taken at the scene and a forensic scientist regarding testing for DNA. There were no DNA results that assisted with the central issue of whether sexual penetration had occurred. It is unnecessary to say more about that evidence as it is not relevant to the ground of appeal.

Discussions with counsel

1. At the end of the prosecution case the appellant elected not to give or call any evidence. There was then a discussion between the trial judge and counsel as to what directions should be given to the jury. Amongst the issues raised by the trial judge was the directions that should be given regarding the evidence of the earlier touching incidents. The prosecutor stated that this evidence was relied on in two ways. First as evidence that the appellant had demonstrated a sexual interest in the complainant earlier in the evening, which could support an inference that the alleged offences did in fact occur; and second that the evidence of her rebuffing his advances was relevant to whether or not she consented to the sexual activity that subsequently occurred.[9]

   [9] ts 187 ‑ 188.

2. The prosecutor confirmed that the State was not leading this evidence for a 'propensity purpose, but as a part of the circumstantial case'.[10] The prosecutor accepted that this evidence was part of the circumstances leading up to the alleged offences. The trial judge noted that because this was not an indispensable link in the prosecution's circumstantial case it was not necessary for the jury to be satisfied beyond reasonable doubt that the earlier incidents had occurred. His Honour read out the directions that he proposed to give, which substantially accord with those that he later gave.[11] Defence counsel stated that she had no issue with the proposed directions.[12]

   [10] ts 190.

   [11] ts 188 ‑ 189.

   [12] ts 191.

Directions of the trial judge

1. At the start of his directions to the jury the trial judge identified the main issues as being whether the jury was satisfied beyond reasonable doubt that the acts alleged in the charges happened, which required that they be satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the evidence of the complainant and, if satisfied that the acts occurred, whether they were satisfied beyond reasonable doubt that the complainant did not consent to the sexual activity.[13]

   [13] ts 201.

2. The trial judge gave orthodox directions in relation to the onus and standard of proof, the elements of the offences and the significance of the recent complaint evidence. No issue is taken with any of these directions. The ground of appeal relates solely to directions given in regard to the relevance and use to which the jury could make of the earlier touching incidents.

3. The relevant directions are as follows:[14]

   [14] ts 221 ‑ 223.

   In this case, the State has led evidence of other conduct of the accused, that is, other acts between the accused and the complainant, [C], which are not the subject of counts on the indictment.

   The complainant, [C], said the accused grabbed and swiped his hand across her buttocks, or her bottom, as he walked past her on two occasions. She said she was angry and told him to piss off. He was also staring at her, she said, like a pervert, which made her feel weird. The State led that evidence because they say it shows that the accused had a sexual interest in the complainant and was willing to give effect to that sexual interest by doing those other sexual acts and therefore it is more likely that the accused did the acts that you are now considering; the acts alleged in the indictment.

   In his video record of interview, the accused denied he had a sexual interest in the complainant, [C], or (was) sexually attracted to her. He said he didn't normally talk to her. While in his video record of interview the accused admits he lay on the mattress with [C], he says he was very drunk at the time and has no recollection of whether any sexual activity occurred. It is important that I tell you how you are to use this evidence.

   If you are considering the evidence of the other conduct by the accused, then you must be satisfied the conduct occurred, you must be satisfied that the conduct was sexual conduct directed towards the complainant, and you must be satisfied that such conduct proves that the accused had a sexual interest in the complainant and a willingness to give effect to that interest in the way described by the complainant, [C].

   If you are persuaded of these matters, that conclusion may help you in deciding whether the charge you are considering is established. It is a matter entirely for you. It may help you because showing that the accused has acted in a sexual way towards the complainant on an earlier occasion may show that the accused has demonstrated that he had a sexual interest in the complainant and was willing to give effect to that interest by doing those other acts and you may think that it's more likely that the accused did the acts that are alleged in the indictment.

   It can be used as a step in the proof of the commission of the charged acts. It is only in that manner that the evidence may be used. Even if you are satisfied that the other sexual conduct occurred, you cannot move automatically to a finding that the accused committed the act that you are considering. It just does not follow that because a person has, on another occasion, committed an act and [sic, that] he did the act that you are considering on this occasion.

   Proving that a person did something on an earlier occasion does not compel a conclusion that he again did another act of a sexual character. People do not always act in accordance with all their inclinations at every opportunity. As I've said, if you are satisfied the other conduct occurred and it was of a sexual nature, you cannot move automatically to a finding that the accused committed the act that you are considering; the act in either count 1 or count 2 on the indictment.

   Indeed, you may not necessarily need to decide whether the other conduct occurred. You may be satisfied of the accused guilt to the charge that you are considering even if you are unable to decide or don't find it necessary to consider whether the other conduct occurred. Even if you are satisfied that the other conduct occurred, you may still entertain a reasonable doubt in respect of the count that you are considering on the indictment.

   The reason for this is, of course, it just does not follow that because the accused has been involved in other conduct of a sexual character on another occasion, that he is guilty of the offence that you are then considering. Whether you are satisfied that the other conduct occurred, and if it did, whether it was of a sexual nature, and whether it shows that the accused had a sexual interest in the complainant and had a willingness to give effect to it in the way described by her, and whether that makes it more likely that the accused did the act you are considering, are matters entirely for your consideration.

   However, before you can use the evidence in this way, you must be satisfied that the other conduct occurred and that it was of a sexual nature and that it demonstrates that the accused had a sexual interest in the complainant and was willing to give effect to that interest by doing those other acts. It can only ever be a step in the proof of the commission of the act charged, and you can only convict the accused if you are satisfied beyond reasonable doubt that the accused committed the offence charged.

Ground of appeal

1. The ground of appeal is as follows:

   The learned trial judge misdirected the jury by giving a propensity direction regarding the segment of the complainant's evidence where the evidence was not propensity evidence, such error being a wrong direction on a question of law [ts 222].

Appellant's submissions

1. The appellant accepts that the evidence of the bottom touching incident was relevant and admissible as part of the 'factual matrix that preceded the allegations' and is also relevant to the issue of consent, and honest and reasonable but mistaken belief as to consent.[15] This is consistent with the approach taken by defence counsel at the trial.

   [15] Appellant's Submissions [11].

2. At the hearing of the appeal it was put to counsel for the appellant that the evidence was relevant because it demonstrated a sexual interest by the appellant in the complainant on the night in question. Counsel accepted that the evidence was relevant to the interactions between the appellant and the complainant during the course of the evening 'so as to put the charges in in the indictment in a broader context'.[16]

   [16] Appeal ts 3.

3. The appellant submitted that the evidence did not meet the test of significant probative value in s 31A of the Evidence Act 1906 (WA) for the admissibility of propensity evidence. The suggestion appeared to be that since the evidence was not admissible as propensity evidence, and not in fact admitted for that purpose, the judge should have expressly directed the jury against using the evidence to engage in propensity reasoning. Insofar as the judge's directions invited or left it open to the jury to use the evidence on a propensity basis the directions were said to be erroneous.

4. Whilst counsel for the appellant accepted that the evidence was admissible as circumstantial evidence, she also submitted that the directions of the trial judge 'pitched the weight at which [the jury] could use the evidence too strongly'.[17] Counsel submitted that the bottom touching incidents showed a sexual interest in a 'fairly mild, innocuous way' that could not lead to a conclusion that the appellant was likely to a significant extent to have committed the acts alleged in the indictment.[18]

   [17] Appeal ts 6.

   [18] Appeal ts 14.

Respondent's submissions

1. The respondent submits that the evidence was not relied on as propensity evidence under s 31A of the Evidence Act but as common law propensity evidence. The evidence was relied on to demonstrate that the appellant had a sexual interest in the complainant earlier in the evening, which could support an inference that the alleged offences had occurred. It was also relied on as evidence relevant to whether the complainant was likely to have consented to any sexual activity.[19]

   [19] Respondent's Submissions [13], [21].

2. The respondent relies on the decision of the High Court in The Queen v Bauer (a pseudonym).[20] In that case the court observed that it has long been the law that a complainant's evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Such evidence, when taken in combination with other evidence, may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it, which assists to eliminate doubts that might otherwise attend the complainant's evidence of the charged acts.[21]

   [20] The Queen v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56.

   [21] Bauer [49].

3. The High Court in Bauer set out the directions that should ordinarily be given in a single complainant sexual offence case where the prosecution relies on evidence of uncharged acts to prove that the accused had a sexual interest in the complainant and a tendency to act upon it.[22] The respondent submits that the directions given by the trial judge complied with those requirements.[23]

Hill v The State of Western Australia[24]

[22] Bauer [86].

[23] Respondent's Submissions [26].

[24] Hill v The State of Western Australia [2019] WASCA 209.

1. Further submissions from counsel were invited in respect of the decision of this court in Hill. The reasons in that case have been suppressed because the appeal was allowed and a retrial ordered. Because of the possible relevance of that case the suppression order was varied to allow counsel to view the reasons and make further written submissions.

2. Given the existence of the suppression order it is inappropriate to set out the facts in Hill. In any event it is unnecessary to do so in order to refer to the relevant conclusions. Those conclusions can be summarised as follows:

   1.Evidence of uncharged acts may be admissible, not as propensity or tendency evidence, but as evidence that is relevant to placing the allegations into their true context as part of the essential background against which the complainant's evidence and any evidence of the accused must be evaluated.

   2.It is incumbent upon the trial judge to direct the jury as to the use of which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put.

   3.In the circumstances of that case, the jury should have been directed that they must not reason on the basis of the evidence of the uncharged acts that the accused was the kind of person who was likely to have committed the charged offences.

   4.In the circumstances of that case, the jury should also have directed that it must not take the evidence of the uncharged acts into account in deciding whether the State had proven beyond reasonable doubt that the appellant had committed any of the specific offences charged in the indictment.[25]

   [25] That is, that the evidence was relevant in providing context only and did not in itself increase the likelihood that the accused committed the offences. See Hill v The State of Western Australia [2019] WASCA 209 per Quinlan CJ [5], [9].

3. It is important to note that in Hill the uncharged acts evidence related to incidents that had occurred on other unrelated occasions and was not led to demonstrate that the appellant had any sexual interest in doing the acts that were the subject of the charges. The uncharged acts evidence in that case was relied on only to show that the alleged offences had occurred in the context of other similar behaviour and had become normalised, thus affording an explanation for why the complainants had not made earlier complaints and may have had difficulty recalling the specific details of the incidents that were the subject of the charges.

4. The appellant in this case submits that the trial judge was bound to direct the jury in accordance with Hill and failed to do so in that he did not direct the jury that:

   1.they must not reason on the basis of the evidence of the uncharged acts that the appellant was the kind of person who was likely to have committed the charged offences; and

   2.they must not take the evidence of the uncharged acts into account in deciding whether the State had proven beyond reasonable doubt that the appellant had committed any of the specific offences in the indictment.[26]

   [26] Appellant's Further Submissions [3].

5. The respondent submits that the decision in Hill can be distinguished because the prosecution in the present case did not rely on the evidence of uncharged acts as context evidence and because the trial judge did not direct that this evidence was part of the factual matrix or anything similar. It is said that Hill was a different type of case because the evidence of uncharged acts in that case was not admitted as propensity evidence either pursuant to s 31A of the Evidence Act or at common law, whereas in the present case the evidence of uncharged acts was admitted as propensity evidence at common law.[27]

   [27] Respondent's Further Submissions [6] ‑ [7].

Merits of the appeal

1. The evidence of the earlier incidents was not relied on as propensity evidence. That is, it was not suggested that because the appellant had touched the complainant in a sexual manner on an earlier occasion he was the kind of person who would commit sexual offences of the type alleged. There was no suggestion that the appellant was a person with a particular character or tendency that made it more likely that he had engaged in the conduct that was the subject of the charges.

2. The relevance of the evidence was, rather, that it was capable of demonstrating that the appellant had shown a sexual interest in the complainant on the same night as the alleged offences and that his sexual advances had been rebuffed. The existence of a sexual interest at the relevant time was a factor that made it more likely that the appellant would behave in the manner alleged. That is not because of any propensity on the part of the appellant but because a sexual interest is a factor that may motivate sexual acts. The use of the evidence for this purpose does not involve any reliance on propensity reasoning.

3. That the appellant had a sexual interest in the complainant and had demonstrated it at a time that was close to the alleged offences was a matter that was plainly relevant in determining whether those offences had occurred. That the complainant had rebuffed the appellant's advances made it less likely that she consented to sexual activity or that the appellant could reasonably but mistakenly have believed that she was consenting.

4. The evidence in this case can be distinguished from those cases where uncharged acts on other unrelated occasions are relied on to demonstrate a particular tendency on the part of the accused or the nature of a relationship between the accused and the complainant. In such cases the process of reasoning is to ask whether those other acts occurred and to then determine whether they prove the existence of some relevant propensity or relationship. It is proof of such a propensity or relationship that provides the connection between what would otherwise be unconnected acts. Here the uncharged acts occurred on the same night and it was not necessary to establish any propensity or relationship to prove a relevant connection.  

5. The evidence can also be distinguished from context evidence, that is, evidence used to explain or evaluate other evidence. A variety of evidence can be described as contextual, such as evidence that explains a complainant's failure to complain or evidence that explains why an accused may have been confident to act in a particular way. The use of such evidence was referred to by the High Court in Johnson v The Queen.[28] A feature of context evidence is that it does not, of itself, increase the likelihood that the accused committed the offence. That is not the case here. In this case proof of the existence of a sexual interest in the complainant on the relevant night was not mere context evidence, rather it was evidence that increased the likelihood that the offences had occurred.

   [28] Johnson v The Queen [2018] HCA 48; (2018) 266 CLR 106.

6. In R v Dolan,[29] King CJ (Mullighan J agreeing) said:

   In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before the jury, it is incumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence, and, even more importantly in most cases, the uses to which the evidence must not be put.

   [29] R v Dolan (1992) 58 SASR 501, 503.

7. In Johnson,[30] Kiefel CJ, Bell, Gageler, Nettle & Gordon JJ said:

   There is seldom as much risk of a jury reasoning improperly from uncharged act context evidence than reasoning improperly from charged act evidence; especially where … the jury is carefully directed as to the limited purpose for which the uncharged act evidence is adduced and that the jury must not find the accused guilty of a charged act unless satisfied beyond reasonable doubt, on the evidence relating to the that charge, that the accused is guilty of that charge.

   [30] Johnson [20].

8. The directions of the trial judge clearly explained how the evidence could be used. His Honour was careful to ensure that the jury understood that the relevance of the evidence was confined to the question of whether the appellant had a sexual interest in the complainant. He directed the jury that if that sexual interest was proven it was relevant to the issue of whether the offences occurred, but it was not in itself sufficient to prove those offences. If anything these directions favoured the appellant because they did not refer to the use that could be made of the evidence in determining the issue of consent.

9. The directions did not invite propensity reasoning. There was no suggestion by the trial judge that this evidence was relevant to prove that the appellant was a particular kind of person or had a particular type of character or possessed some proclivity or tendency to act in any particular way. There was a reference to 'inclinations', but this was in the context of warning the jury that people who have a sexual interest in another do not always act on it. That reference could not reasonably be understood to mean that the accused had some propensity to act in a particular way.

10. The directions to the jury that they must be satisfied that the earlier incident occurred, that it was of a sexual nature and demonstrates that the appellant had a sexual interest and was willing to act on it, were appropriate. They focused the attention of the jury on the relevance of this evidence. The fact that a propensity direction may incorporate a similar element does not mean that this was a propensity direction or would be so understood. It is important to interpret the words in the way they are likely to have been understood by the jury.

11. In the circumstances of this case there was no perceptible risk that the jury would engage in propensity reasoning given the nature of the directions and the obvious fact that the uncharged acts related to an incident that occurred on the same night as the alleged offences. To have expressly excluded use of the evidence to engage in propensity reasoning would have required an explanation of what the prohibited course of reasoning would be. In the circumstances of this case that would only have served to implant an idea that had not been raised by anyone and that would not otherwise have occurred to the jury. The importance of directing a jury as to the uses to which evidence must not be put must be understood in the context of the individual case and the existence (or otherwise) of the risk that it would be used in a prohibited way.

12. The fact that defence counsel in a criminal trial does not seek a redirection may support a conclusion that in the context of the charge as a whole a challenged statement does not bear the interpretation sought to be placed upon it on appeal.[31] In this case the appellant's trial counsel raised no concern with the directions and this tends to confirm that those present at the trial and familiar with the evidence perceived no real risk that the jury would misunderstand the directions and use the evidence in an inappropriate way.

    [31] GBF v The Queen [2020] HCA 40 [25].

13. Insofar as Hill is relied on, the factual circumstances of that case were significantly different from the present case. In Hill the uncharged acts were not relied on as evidence directly relevant to proof of the offences. Those uncharged acts related to incidents that had occurred on other unrelated occasions which had the effect of normalising the alleged behaviour and explaining why the complainants may not have complained about the behaviour or recalled particular incidents. In the present case the uncharged acts related to the appellant's actions earlier on the night in question and that were, on any view, relevant to proof of the offences. Accordingly, the direction that was considered necessary in Hill, namely that the jury be told that they could not use the uncharged acts in proof of the offences, would not have been appropriate in this case. The evidence here was not merely context evidence in the sense that it might explain the behaviour of the complainant, it was circumstantial evidence relevant to proof that the offences occurred. The risk of the misuse of context evidence that arose in Hill was not present in this case.

14. Any risk that the jury would reason that because the appellant had touched the complainant in a sexual way earlier the same evening he must therefore, without more, have committed the alleged offences was obviated by the clear directions given by the trial judge that proof of the uncharged acts was not in itself sufficient. This obviated the risk of prejudice that may always arise from evidence of other uncharged sexual acts.

15. The appellant submitted that insofar as the evidence was relevant it could only be given small weight and that the trial judge should have directed the jury accordingly. That submission raises a different issue to that contained in the ground of appeal, but in any event it cannot be accepted. The weight to be accorded to evidence is a matter entirely for the jury. It would not have been lost on the jury that the uncharged acts were of a different nature and level of seriousness to the alleged offences. It was made clear that the ultimate question was whether it had been proven beyond reasonable doubt that the appellant had done the acts alleged in the charges.

16. The ground of appeal has not been made out. In these circumstances an extension of time should be refused. We would make the following orders:

    1.Extension of time refused.

    2.Leave to appeal refused.

    3.Appeal dismissed.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

EM

Associate to the Honourable Justice Hall

1 FEBRUARY 2021