Dann v The State of Western Australia

Timothy Edward Dann appeals against his conviction and sentence. He was convicted after trial of one count of sexual penetration without consent and one count of attempted sexual penetration without consent. On 24 May 2019 he was sentenced to a total effective sentence of 5 years 8 months immediate imprisonment. 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. 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. 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. The directions given by the trial judge in respect of the relevant evidence did not invite the jury to engage in propensity reasoning. 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. The reasons for coming to those conclusions are as follows.