Dass v The State of Western Australia - [2021] WASCA 212

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DASS -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 212
CORAM:   BUSS P
BEECH JA
HALL J

HEARD:   15 NOVEMBER 2021
DELIVERED          :   14 DECEMBER 2021
FILE NO/S:   CACR 146 of 2021
BETWEEN:   PAUL RAJAN ANTHONY DASS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LEVY DCJ
File Number            :   IND 1781 of 2020

Catchwords:

Criminal law - Appeal against refusal of application for separate trial of counts - Criminal Appeals Act 2004 (WA), s 26 - Whether accused likely to be prejudiced in the trial - Criminal Procedure Act2004 (WA), s 133 - Whether evidence on counts cross-admissible as propensity evidence - Evidence Act1906 (WA), s 31A

Legislation:

Criminal Appeals Act 2004 (WA), s 26
Criminal Code (WA), s 321(2), s 321(4), s 321(7), s 321(8)(a)
Criminal Procedure Act 2004 (WA), s 85, cl 7(3) sch 1 div 2, s 133(3)(a), s 133(3), s 133(5)
Evidence Act 1906 (WA), s 31A

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr J Jackson
Respondent	:	Mr L M Fox SC

Solicitors:

Appellant	:	James Jackson Criminal Defence
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Lilley v The State of Western Australia [2019] WASCA 164
Mansell v The Sate of Western Australia [2009] WASCA 140
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
The State of Western Australia v Dass [2021] WADC 97
The State of Western Australia v Jackson [2019] WASCA 118
The State of Western Australia v Micalizzi [2010] WASCA 147
Zammit v The State of Western Australia [2007] WASCA 66

REASONS OF THE COURT:

This is an appeal pursuant to s 26 of the Criminal Appeals Act 2004 (WA) from a decision refusing the appellant's application for separate trials of charges pending against him. The appeal was heard on an urgent basis as the trial was listed to commence shortly. At the conclusion of the hearing, leave to appeal was refused and the appeal was dismissed. The following are our reasons for making those orders.
The appellant is charged on an indictment with six sexual offences. Counts 1, 2, 3 and 6 allege offences of sexual penetration of a child over the age of 13 and under the age of 16 years, contrary to s 321(2) and s 321(7)(a) of the Criminal Code (WA). Counts 4 and 5 allege offences of indecently dealing with a child over the age of 13 and under the age of 16 years, contrary to s 321(4) and s 321(8)(a) of the Criminal Code. The complainant in respect of counts 1 to 3 is VCN. The complainant in respect of counts 4 to 6 is BMC.

Prosecution case

The prosecution case is that counts 1 to 3 occurred on 3 December 2017 at a house in Beeliar.
VCN was born on 17 June 2003. Thus, at the date of counts 1 to 3 she was 14 years old. She attended a high school in the Perth metropolitan area. Another girl of similar age, ACK, was a friend of VCN. ACK attended the same high school and was in the same year as VCN.
On Saturday, 2 December 2017, VCN was at her home in the late evening when she received a telephone call from ACK. ACK asked VCN to come out and meet her. VCN agreed to do so and walked from her home to the front of the high school that they both attended. She waited there to be picked up. ACK arrived in a car driven by an adult male. VCN described the car as being silver or black and clean. VCN got into the car and began talking to ACK about school.[1]
[1] Video record of interview with VCN (VCN VRI) 4, 6; VCN’s pre-recorded evidence, 8 April 2021 (VCN pre-recording), 32; Appeal Book 96, 98.
VCN had met the man very briefly once before and understood that he was ACK's boyfriend. The man was introduced to VCN as 'Matt'. She described him as being short, fat or overweight, dark skin, mid‑30s, short black hair, wearing glasses and of an Indian appearance, though he did not have an accent.[2] The State alleges that Matt was the appellant.
[2] VCN VRI 7; VCN pre-recording) 52; Appeal Book 99.
The State case is that the appellant then drove both girls in his car to a house in Beeliar. VCN described the house as being pale with a steep descending driveway. The appellant told VCN that the house was his sister's house. There was no-one else at the house and the appellant told VCN that his sister and her family were away on holiday. She described the house as having a small 'high-tech' kitchen, mostly tiled floors with carpets in the bedrooms and that the toilet had blue 'badly painted skies' drawn on it.[3] She said that there were a child's drawings on the fridge. There was a black, medium-sized dog outside.
[3] VCN VRI, 19; Appeal Book 111.
The appellant mixed drinks in the kitchen while VCN and ACK remained in the living room. VCN described the drinks as consisting of dark spirits and coke. Some were straight and others were mixed. VCN had 'quite a few' of those. She felt 'all dizzy' and went to the toilet to collect herself.[4]
[4] VCN VRI 10; Appeal Book 102.
When she returned from the toilet, ACK and the appellant were in a bedroom listening to music. VCN described this room as having cream walls and a queen-sized bed that took up most of the room. There was a small, black bedside table and carpet on the floor.[5]
[5] VCN VRI 19; Appeal Book 111.
Whilst in the bedroom the appellant provided VCN with a drug, which she understood was DMT, although she later believed that it was methylamphetamine. She smoked this drug using an implement provided by the appellant which consisted of a small plastic jar with two straws. The appellant applied heat under the jar and they all smoked the vapour, though VCN said that she smoked the most. She laid down on the bed because she felt tired.[6]
[6] VCN VRI 10; Appeal Book 102.
ACK began to kiss VCN on the lips and neck. The appellant then joined in by kissing VCN on the neck. ACK removed her own outer clothes and those of VCN, leaving them both in only underwear on the bed. The appellant then left the room and made a drink that VCN understood contained liquid ecstasy. This was supplied to VCN and she drank it. She downed it in one go because it tasted bad.
After listening to more music, the appellant and ACK resumed kissing VCN. VCN's underwear was removed and a prolonged sexual encounter ensued in which the following occurred:
1.The appellant (as well as ACK) performed cunnilingus upon VCN (count 1).
2.The appellant sexually penetrated VCN's vagina with his fingers (count 2).
3.The appellant had vaginal sexual intercourse with ACK. He then briefly sexually penetrated VCN by inserting his penis into her vagina (count 3).
VCN also described other sexual acts performed by ACK upon her and the appellant, as well as the appellant performing multiple sexual acts upon both VCN and ACK. The sexual activity continued for some hours and VCN did not consent to any of the sexual acts with the appellant. She told them to stop but did not think that they heard her. She began to feel 'really light and floaty', stopped moving and closed her eyes.[7] Soon after this she said that she needed to go home.
[7] VCN VRI 15; Appeal Book 107.
The appellant and ACK drove VCN home in the early hours of Sunday, 3 December 2017. She was extremely intoxicated with alcohol and drugs. She vomited after arriving home. The following day she told her boyfriend what had occurred.
The State case is that the appellant's sister does, in fact, live in Beeliar with her husband and children. Her husband is named Mathew (though he does not otherwise fit the description of Matt, and thus on the State case can be excluded). A recorded walk‑through of the property shows that it is a pale coloured house with a steep descending driveway. The internal features also generally match those described by VCN, including a toilet with cloudy blue painted walls. There was a black medium-sized dog present when the police attended.[8] When shown a photograph of the house, VCN identified it as the house she was taken to by ACK and the man who gave the name of Matt. She was shown the photograph 10 months after she provided her description to the police.[9]
[8] Video search of Beeliar property.
[9] VCN pre-recording 32.
Counts 4 and 5 are alleged to have occurred on a date unknown in August 2018 at a house in Leeming.
BMC was born on 5 August 2003. Thus, at the date of the alleged offences, she was either 14 or 15 years old. She attended a high school in the Perth metropolitan area (being a different school to that attended by ACK and VCN). Another girl of similar age, IS, who attended the same high school, was a friend of BMC.
Sometime in July 2018, IS introduced BMC to ACK and an adult male. The man gave his name as 'Sage', though she also knew him as 'Matt'. She told him that she was aged 14. BMC described the man as being Indian and aged about '40‑something'.[10] She believed that ACK was Sage's girlfriend. The State alleges that Sage was the appellant.
[10] Video record of interview with BCM (BCM VRI) 9; Appeal Book 128.
The State case is that on a later date in August 2018, IS invited BMC to come out with her. BMC travelled by train and was then picked up by the appellant from a train station. The appellant drove her in his car, which she described as a black, four‑door, 'pretty fancy', 'new sort of car'.[11] They went to a house in Leeming. The State alleges that this was the appellant's house.
[11] BCM’s pre-recording of evidence, 9 April 2021 (BCM pre-recording) 81.
IS was present at the house. BMC lay on a single bed with no frame (or a mattress) with the appellant and IS. BMC said that the following occurred:
1.The appellant touched BMC's breasts (count 4).
2.The appellant tried to put his hands down BMC's pants. He was able to put his hand under her pants but not under her underwear (count 5).
BMC says that on this occasion she and IS were kept at the appellant's house for three days. She says that the appellant took their mobile telephones from them. During that period there were multiple occasions of drug use involving different substances. One of the drugs used was methylamphetamine.[12] At the end of this period the appellant drove BMC home to either her mother's or her father's house.
[12] BCM pre-recording 93, 87.
Count 6 is alleged to have occurred on a separate occasion later in August 2018. BMC was still 14 or 15 years old as at this time. BMC again travelled by train and then the appellant's car to his house in Leeming. On this occasion ACK was present.[13]
[13] BCM VRI 11; Appeal Book 130.
At the house the appellant asked BMC and ACK to kiss each other, which they did. ACK then started to undress BMC. The appellant joined in by undressing ACK whilst ACK continued to undress BMC. The appellant then had sexual intercourse with ACK in the presence of BMC. He then had penile/vaginal intercourse with BMC. This act of penetration is the subject of count 6 on the indictment. The appellant then produced a vibrator which he gave to ACK, who used it on BMC by putting it against her vagina. BMC then used the vibrator on ACK.
BMC attended the appellant's house on other occasions. On these occasions, drugs were used. Other people were present on some occasions, including the appellant, IS and another female whose name BMC did not know. When she used drugs at the house it was either by taking the drugs internally or by using an implement.
VCN and BMC independently drew pictures of the implement that they each say was used to ingest drugs.[14] The drawings have a marked similarity. They both show a straight‑sided container, similar to a jar or cup, with two straws coming from the top and angled away from each other.
[14] Exhibits 3 and 5; Appeal Book 91, 92.
After the second incident, BMC travelled to the Leeming area with her stepfather with a view to trying to locate the house she was taken to. She was able to find the house and her stepfather took a photograph of it.
The police later attended the house in Leeming and confirmed that the appellant lived there. The house is in Mathew Avenue. A search was conducted which resulted in the finding of a smoking implement that was similar in appearance to that drawn by VCN and BMC.
The prosecution also relies on evidence that the appellant is a man of Indian descent, that he was aged 39 or 40 years old at the time of the alleged events and that he drove a black BMW vehicle.

Defence case

The defence case in relation to counts 1 to 3 is essentially one of mistaken identity. In written submissions it was put in the following way: 'Part of the defence case is that VCN has mistakenly identified the appellant as the offender when in fact it was a separate and unidentified male on a different occasion.'[15]
[15] Appeal Book 11.
VCN's evidence has been pre‑recorded. In cross‑examination she accepted that ACK had a lot of boyfriends. She and ACK had smoked cannabis together on occasions. She understood that ACK was sexually active with several older men. She accepted that there was another occasion when she and ACK attended the home of a different man, however she denied that the encounter involved her being sexually intimate with that man. She said that, in any event, the other man was white and not Indian.[16]
[16] VCN pre-recording 62.
The defence case in relation to counts 4 to 6 is that the sexual acts described by BMC did not occur. Whilst the appellant does not deny meeting BMC, or that she has been to his home in Leeming, he denies having any sexual relations with BMC.
BMC's evidence has been pre‑recorded. In cross‑examination it was put to her that her dealings with the appellant had been in relation to the repair of a mobile telephone and a laptop computer. It was suggested that she had been unable to pay for these repairs and had made up the allegations of sexual offences to avoid the debt. It was also suggested that she had falsely claimed to have been provided with drugs by the appellant in order to cover up her own unrelated drug use. She denied all of these allegations.[17]
[17] BMC pre-recording 92, 95 – 97.
The appellant has been charged on a separate indictment with offences relating to ACK. The charges on that indictment are that between 1 March 2018 and 25 September 2018 he persistently engaged in sexual conduct with ACK, a child under the age of 16 years, contrary to s 321A(4) of the Criminal Code, and that on 7 April 2018 he indecently recorded ACK, a child over the age of 13 and under the age of 16 years, by making a video recording of himself and ACK engaging in sexual activity with each other, contrary to s 321(6) and 321(8)(a) of the Criminal Code. He has pleaded guilty to those charges and the fact that he had a sexual relationship with ACK will not be in dispute in the present proceedings. For the purpose of the proceedings relating to ACK, the State has conceded that the appellant had a reasonable belief that ACK was over the age of 16 years at the time of the offending.
The relevance of those facts to the present matters is that it will not be in dispute that the appellant engaged in a sexual relationship with ACK, nor that she was in fact under the age of 16 years of age at the time. However, there may be an issue as to whether that sexual relationship was in existence as at the time of counts 1 to 3; that is, as at 3 December 2017. The defence will assert that the relationship was not in existence at that time and that this is a matter that is relevant in assessing the credibility of VCN.

The separate trial application

The appellant applied for counts 1 to 3 to be tried separately from counts 4 to 6. It was accepted that the counts in each group were properly joined with each other, however it was contended that the two groups were not properly joined. Further, it was submitted that the evidence in relation to each of the two groups was not cross‑admissible; that is, that the evidence relating to each group does not constitute propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA) in relation to the charges in the other group. Further, it was submitted that if tried together the appellant would suffer prejudice that was incapable of being guarded against by directions of the trial judge to the jury.
The State opposed the application and contended that the two groups of charges involve similarities in the underlying facts, circumstances and context, that the evidence on one group was cross‑admissible in respect of the other group as propensity evidence and that the charges were, accordingly, properly joined. In these circumstances, it was submitted, no prejudice arose from the joinder.
The primary judge concluded that all of the counts on the indictment are part of a series of offences of the same or a similar character and were therefore properly joined pursuant to s 85 and clause 7(3) of schedule 1, Division 2 of the Criminal Procedure Act 2004 (WA). Further, his Honour concluded that evidence relating to each group of charges was cross‑admissible, pursuant to s 31A of the Evidence Act as propensity evidence.
In reaching that conclusion his Honour said:[18]
I am satisfied that:
a)the proposed evidence relating to counts 4 to 6 (BMC charges) does satisfy the criteria of 'similar fact evidence' and does have significant probative value in relation to the question of identity in relation to counts 1 to 3; and
b) the evidence on one set of charges can be used as evidence against the accused on the other set of charges in that it is capable of demonstrating that the accused had a sexual interest in pubescent females and his tendency to act on that sexual interest, by providing the pubescent female with alcohol and illicit substances, and engaging in sexual activity with them and another female (at the same time) and therefore has significant probative value in relation to all charges on the indictment.
[18] The State of Western Australia v Dass [2021] WADC 97 [80].
In considering whether there would be a risk of an unfair trial if the propensity evidence was admitted, his Honour referred to the necessity to take into account directions that might be given to the jury to overcome any prejudice. He then said:[19]
The jury will need to be given proper directions on the use to be made of the evidence, as well as how they would not be permitted to rely upon this evidence. Those directions will need to include that:
1)even if the jury were to find that the accused was guilty of one of the counts on the indictment, they could not move automatically to a finding that he was guilty of any of the other counts that they were considering;
2)by itself a finding of guilt on one count is incapable of proving guilt on another; and
3)the jury could not find the accused guilty of an offence for which he had been charged unless they were satisfied beyond reasonable doubt by direct evidence that the offence for which the accused was charged had been committed by him.
[19] Dass [83].
Having regard to the directions that could be given to the jury, and noting the existence of other circumstantial evidence which was relevant in proving the identity of the offender as being the accused in counts 1 to 3, his Honour was satisfied that any prejudice could be overcome. In these circumstances he concluded that it was proper to allow the evidence of each group of charges to be used as propensity evidence in respect of the other group. There being no relevant prejudice arising from the charges being dealt with together, he dismissed the application for separate trials.

Ground of appeal

There is a single ground of appeal. It is as follows:[20]
The learned judge erred in exercising his discretion under s 133(3)(a) of the Criminal Procedure Act 2004 (WA) by failing to order separate trials in relation to counts 1 to 3 and 4 to 6.
Particulars.
a)Counts 1 to 3 and counts 4 to 6 are not properly joined on the indictment;
b)Neither set of charges is cross‑admissible on the other set of charges; and
c)The appellant will suffer improper prejudice by joinder of both sets of charges which cannot be cured by judicial direction.
[20] Appeal Book 7.

The merits of the appeal

If a court is satisfied that an accused is likely to be prejudiced in the 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. In deciding whether to make such an order it is open to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury. Such a decision can be reached irrespective of the nature of the offences and even if the evidence on one of the charges is inadmissible on another: s 133(3) and (5) Criminal Procedure Act.
If, however, evidence on the charges on an indictment is cross‑admissible there can be no doubt that the charges are properly joined.[21] Nor can there be any relevant prejudice from the joinder of those charges.[22] The prejudice that s 133 is concerned with is prejudice arising from the charges being heard together. Any such prejudice could only arise from the jury hearing about other conduct that they would not hear about if the charges were dealt with in separate trials. If the evidence is cross-admissible then ordering separate trials would achieve nothing and could not be justified under s 133(3).
[21] Zammit v The State of Western Australia [2007] WASCA 66 [24] (Steytler P).
[22] Mansell v The Sate of Western Australia [2009] WASCA 140 [36] (Miller JA).
At the hearing of the appeal counsel for the appellant conceded that all of the counts would be properly joined if evidence in respect of them was cross‑admissible.[23] That concession is clearly correct. For that reason, it is convenient to deal first with the question of admissibility.
[23] Appeal ts 2.
Section 31A of the Evidence Act provides that:
(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.
The principles governing the admission of propensity evidence, pursuant to s 31A of the Evidence Act are well established. The principles relevant to whether propensity evidence or relationship evidence has significant probative value within the meaning of s 31A were summarised in RMD v The State of Western Australia as follows:[24]
[24] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185]; adopted in many cases, including Lilley v The State of Western Australia [2019] WASCA 164 [59].
(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 this court added four further points:[25]
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.
[25] The State of Western Australia v Jackson [2019] WASCA 118.
A 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. However, there is no requirement that evidence sought to be relied on as similar fact evidence must be unique to an individual to have significant probative value.[26]
[26] RMD v The State of Western Australia.
In the present case, unlike in an appeal against conviction, the question of whether evidence has significant probative value must be determined in advance of the trial. The inquiry as to whether propensity evidence has significant probative value begins with the identification of the fact(s) in issue to which the propensity evidence is said to be relevant.[27] Here, the central fact in issue on each charge is whether the appellant engaged in the conduct the subject of the charge. For the reasons below, the evidence concerning each group of charges has significant probative value in relation to whether the appellant engaged in the conduct the subject of the other group of charges.
[27] The State of Western Australia v Jackson [52].
As detailed later in these reasons, the appellant points to a number of differences between the two groups of offences. As against the matters raised by the appellant, there are many significant similarities between the two groups of alleged offences. They include:
1)Both complainants are young teenage girls and describe their assailant as being an older Indian man.
2)Both refer to the man as being in a relationship with ACK.
3)Both complainants refer to incidents involving polyamorous activity with the assailant and other similar aged pubescent females.
4)Both complainants refer to ACK being involved in sexual activity with their assailant in their presence.
5)Both complainants refer to being provided with drugs and alcohol.
6)Both complainants refer to a similar implement being used to consume drugs.
7)Both complainants were taken to houses which, while different, can be independently linked to the appellant. In the case of VCN the appellant's sister's house in Beeliar. In the case of BMC the appellant's house in Leeming.
8)In the case of VCN the assailant gave the name Matt, which has a link both to the name of his brother‑in‑law and name of the street in which he lives. In the case of BMC the assailant gave the name Sage, though she also knew him as Matt.
Those factors, when taken together, show that the factual circumstances in relation to each group of charges bear numerous and significant similarities. The similarities are such as to support, to a significant degree, a conclusion that all of the counts relate to the same man and that that man has a specific tendency. If counts 1 to 3 are proven, then that evidence would establish a propensity on the part of the appellant to engage in polyamorous activity with pubescent females. This would have significant probative value in determining whether the acts, the subject of counts 4 to 6, occurred. If counts 4 to 6 are proven then that evidence would, similarly, establish a propensity on the part of the appellant to engage in polyamorous activity with pubescent females. This would have significant probative value in determining the identity of VCN's assailant on counts 1 to 3.
The probative value of the evidence of BMC to the question of the identity of VCN's assailant must be viewed having regard to the other evidence to be adduced. As noted earlier, there is other circumstantial evidence relevant to identity. This includes VCN's description of her assailant, her description of both the outside of the house and features inside, her identification of a photograph of the house and that the house in question belongs to the appellant's sister. When the evidence of BMC is viewed together with that circumstantial evidence it is apparent that it has significant, if not overwhelming, probative value on the issue of identity.
The fact that the appellant was engaging in other polyamorous sexual behaviour with ACK and a different teenage girl of a similar age to VCN is highly probative of the appellant being the offender. As the State put it in its submissions, the offender belongs to what must be a relatively small class of Indian men in their 30s or 40s who have an association with the Beeliar house and who also engage in polyamorous sexual activity with ACK and other teenage girls of approximately 14 years of age.[28] The evidence in relation to counts 4 to 6, in combination with the other circumstantial evidence of identity, is capable of negating - and thus would rationally affect, to a significant extent, the probability of - the core proposition of the defence case; namely that VCN has mistakenly identified the appellant as the offender.
[28] Appeal Book 33 - 34.
This conclusion is not dependent on a finding of striking similarity. It is the appellant's propensity to engage in polyamorous sexual acts with two girls at the same time and, in particular, with ACK and another girl, which is significantly probative on the issue of identity. Any differences as to the precise nature of the acts, the use of drugs, the use of alcohol and other points of distinction referred to by the appellant do not detract from the probative force of the evidence on this issue.
The appellant points to a number of differences between the two groups of offences, which he submits stand in the way of coming to a conclusion that either set of charges has significant probative value in relation to the other. In particular:[29]
1) That VCN and BMC are unknown to each other.
2)That counts 4 and 5 involve different sexual offending, that is indecent dealing rather than acts of penetration.
3)That counts 4 and 5 involve a different third party, IS, who has no connection to VCN.
4)That the counts involving VCN involve non‑consensual conduct, whereas the BMC counts involve 'consensual sexual offending' including the use of a vibrator.
5)That counts 4 to 6 did not involve drug use to the point of intoxication as was the case in counts 1 to 3 but 'merely drug use on various occasions with the appellant which was not connected to the sexual offending'.
6)That the two groups of offences occurred in different houses, in a different time period and, it is asserted, in respect of counts 1 to 3, prior to the appellant commencing a sexual relationship with ACK.
[29] Appeal Book 19.
These asserted differences do not detract from the significant probative value of the evidence of each group of offences in proof of the other group.
There is no obvious significance in VCN and BMC being unknown to each other, indeed it might heighten the probative value of the evidence because it excludes the possibility of collusion.
To suggest that counts 4 and 5 are different because they involve indecent dealing rather than acts of penetration is to take only one aspect of the alleged offending and remove it from the factual context in which it occurred. As to counts 4 and 5 involving a different third party, IS, that is not a difference that affects the essentially similar nature of the conduct. All of the counts, including counts 4 and 5, allege sexual conduct by an adult male with two teenage girls, usually in the context of drug use. Furthermore, there is no dispute that counts 4 and 5 are properly joined with count 6, which does involve an alleged act of penetration.
The suggestion that counts 1 to 3 are different because they involve non-consensual conduct overlooks the detail of what is alleged by VCN to have occurred on that occasion. VCN was provided with drugs and alcohol and an inference may be available that this was done to obtain her compliance. VCN's evidence is that, although she remained aware of what was occurring, she was unable to stop it due to being heavily intoxicated. Furthermore, the offences do not involve any requirement to prove lack of consent and the concept of consent can be misleading when applied to children. Moreover, to suggest that BMC engaged in consensual sexual conduct would be potentially misleading.
As to the suggestion that counts 1 to 3 involve drug use to the point of intoxication, whereas counts 4 to 6 involve only incidental drug use, the difference is of minor significance. The more important factors are that on each occasion the adult, not youthful male, engaged in sexual acts with teenaged girls whilst another similar aged girl was present and that he supplied the girls with illicit drugs, either at the time or at some other time.
As to the difference in time and location, these factors are without significance when seen in context. The two groups of offences occurred 8 to 9 months apart, which is not a time frame that detracts from the probative value of the evidence. The two locations are both houses with a known connection to the appellant and to which he had access. Furthermore, it is not to be expected that an offender will necessarily use the same location in respect of different victims, indeed there are obvious reasons not to do so.
At the appeal hearing, counsel for the appellant submitted that the evidence of BMC did not have significant probative value on the identity issue because it was not known how many men fell within the class of men aged in their 30s or 40s, of Indian appearance, who engaged in polyamorous sexual conduct with pubescent females. The implication was that since the number of men who fell within this class was unknown then the evidence of BMC could not exclude the possibility that some man other than the appellant was VCN's assailant.[30] This approach reflected the defence position that, if what VCN described had occurred, another man was responsible.
[30] Appeal ts, 7 - 8.
That submission is misconceived for the following reasons. Firstly, the class characteristics referred to do not take into account all the relevant evidence. There is evidence that the man responsible for the conduct in relation to VCN had a connection to the Beeliar house and was in a sexual relationship with ACK. Secondly, as Steytler P's analysis in Dair v The State of Western Australia[31] illustrates, it is not necessary to be able to precisely quantify the size of a class of persons who have particular characteristics. It is not difficult to conclude that the number of men who share all of the characteristics referred to must be small and, therefore, BMC's evidence has significant value because it would add a further identifying feature, namely that the appellant has engaged in sexual conduct with her in very similar circumstances. Thirdly, the probative value of identification evidence does not depend on it referring to a characteristic that is unique to an individual. Propensity evidence is a type of circumstantial evidence and should not be viewed in isolation but in the context of all of the other available circumstantial evidence. BMC's evidence has significant probative value in respect of counts 1 to 3 not because it alone could establish the identity of VCN's assailant, but because it adds significantly to the total evidence on the issue of identity.
[31] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [68] - [72].
The appellant suggested that the fair‑minded person test in s 31A(2)(b) is not met because the evidence has limited probative value. For the reasons stated above, the premise of that submission cannot be accepted. In any event, the fair‑minded person test assumes that the evidence does have significant probative value. That test is concerned with whether a fair-minded person, after taking into account the probative value of the evidence as compared to the risk of an unfair trial, would expect the evidence to be led in a particular case notwithstanding that risk.

In Dair, Steytler P made the following observations 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'.[32]
[32] Quoting Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53].
In Dair, Steytler P also identified three possible sources of prejudice that might be caused by the admission of propensity evidence:[33]
1) that the jury might believe the accused to be guilty simply because he is a person likely to do the acts alleged;
2)a tendency to condemn the accused, not because he is guilty of the present charge, but because he has escaped punishment for other offences; and
3)that the jury might become confused or distracted from resolving the charged acts because they unnecessarily concentrate on whether the accused committed the alleged similar acts.
[33] Dair v The State of Western Australia, 429 - 430.
The first of those risks is capable of being adequately guarded against in this case by a direction to the jury. The second risk does not arise in a context where all of the conduct in question is the subject of charges that will be determined by the jury and where the jury will be directed that each charge must be proven beyond reasonable doubt before a verdict of guilty could be returned in respect of it. The third risk is not relevant because all of the evidence will relate to one or other of the charges on the indictment and will not deflect attention away to some other uncharged incident.
In the circumstances of this case, it being clear that the evidence of each group of charges is cross‑admissible pursuant to s 31A, there can be no proper basis for maintaining a claim that the charges are not properly joined. Nor can there be any relevant prejudice from the joinder of those charges. The discretion to order separate trials under s 133(3) is not enlivened unless and until the court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains two or more charges.[34]
[34] Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [94]; The State of Western Australia v Micalizzi [2010] WASCA 147 [23]; Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326, referring to s 133(4); [335].
At the hearing of the appeal counsel for the appellant suggested that even if the evidence of the alleged offending was cross‑admissible there were aspects of the evidence in respect of each group that would have a prejudicial effect.[35] In this regard he referred to evidence of drug use and the evidence that counts 1 to 3 were non‑consensual. The suggestion was that these aspects were not essential to the prosecution case but would be a source of prejudice to the appellant if the charges were dealt with in a joint trial.
[35] Appeal ts 17.
In fact, drug use was a feature present in both groups of offending and is one of the points of similarity relied upon by the prosecution. Insofar as there is any prejudice arising from evidence relating to that drug use in circumstances where the appellant is not charged with supplying drugs, that is not a consequence of the joinder of the charges and is clearly capable of being dealt with by a direction from the trial judge. As regards the issue of consent, we have already referred earlier in these reasons to the fact that consent is not an element of any of the offences charged and is not a material point of distinction. To the extent that it is asserted that any evidence is not relevant, it would be open to object to it. If that evidence is truly irrelevant then it would be excluded.

Conclusion

The learned primary judge was correct to conclude that the evidence was cross-admissible. That being so, there was no prejudice arising from the joinder of the charges. His Honour was also correct in dismissing the application for separate trials of counts 1 to 3 and counts 4 to 6. The ground of appeal against that decision had no reasonable prospect of success.
For the reasons stated we made the following orders at the conclusion of the appeal hearing.
1)Leave to appeal refused.
2)Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EM
Associate to the Honourable Justice Hall
14 DECEMBER 2021