GGM v The State of Western Australia - [2011] WASCA 248

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GGM -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 248

CORAM: McLURE P
BUSS JA
MAZZA J

HEARD: 21 OCTOBER 2011

DELIVERED : 15 NOVEMBER 2011

FILE NO/S: CACR 82 of 2011

BETWEEN: GGM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BRADDOCK DCJ
File No  :IND 13 of 2010

Catchwords:

Criminal law - Appeal against conviction - Multiple charges of sexual offences tried together - Whether otherwise admissible propensity evidence the subject of one charge can be used as propensity evidence in relation to other charges

Legislation:

Evidence Act 1906 (WA), s 31A

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: No appearance

Solicitors:

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

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

R v FJB [1999] 2 VR 425
T v R (1996) 86 A Crim R 293

McLURE P: This is an application for leave to appeal against conviction.
The appellant faced trial on an indictment containing twelve counts of sexual offences against three female complainants who were all under the age of 13 years at the relevant time. The complainants were CB (eight counts), her sister NB (one count) and CD (three counts). The appellant was convicted of the count involving NB and acquitted of the counts involving CD. In relation to the counts involving CB, a no case submission was upheld in relation to three counts and the appellant was found guilty of four counts and not guilty of one count.
The State relied on evidence said to reveal a propensity or tendency on the part of the appellant to commit the offences with which he was charged. That evidence fell into three categories being:
1.uncharged acts alleged by CB and NB;
2.evidence of a sexual offence committed by the appellant in 1985; and
3.any other count in the indictment of which the jury was satisfied beyond reasonable doubt.
The challenge is confined to the third category. The appellant contends the trial judge erred in telling the jury that a finding of guilt on one count in the indictment could be viewed by them as propensity evidence to show a tendency on the part of the appellant to commit other counts on the indictment.
The appeal was conducted on the basis that evidence in the third category is somehow different in nature or kind from evidence falling within the other categories. The distinction was not based on general considerations of relevance and prejudice going to the admissibility of propensity evidence at common law or under s 31A of the Evidence Act 1906 (WA), but solely on the fact that it was a charge in the same indictment. The issue is best understood by framing it in these terms: does otherwise admissible propensity evidence cease to be admissible if it is the subject of a charge being tried together with other charges?
The appellant says leave ought to be granted because this court has not previously determined the question of whether a judge can direct a jury 'that a finding of guilt on one count can be used by them to show a propensity or a tendency on the part of the accused to commit other offences'. It is contended that the direction given by the trial judge is inconsistent with the separate verdicts direction and amounts to an unacceptable 'bootstraps' type of argument.
The trial judge gave a conventional separate verdicts direction. She said:
[I]t is important for you to remember that there are nine separate charges. You look at each charge separately and you make a decision on each separately ‑ as I've said, you'll be asked for your verdicts separately.
When you're looking at one count, you consider only the evidence that is relevant to that count, your verdicts do not have to be the same in relation to each count (ts 462 ‑ 463).
The point was repeated in the context of her direction on uncharged acts, which included the following:
To prove that the accused touched a complainant on another occasion does not compel a conclusion that he is guilty of any offences on the indictment. It just doesn't follow that because a person has, on another occasion, committed an act that he did the act you're considering on this occasion.
Proving that a person did something many times does not compel a conclusion that he did it again. People do not always act in accordance with their inclinations at every opportunity. As I have said, you cannot deliver a guilty verdict unless, having considered all the evidence, you're satisfied beyond reasonable doubt that the accused is guilty of the specific charge that you are considering (ts 479).
The trial judge then turned her attention to the other counts in the indictment. She said:
Similarly, in this case, you're considering an indictment of nine counts and allegations by three complainants. I've already directed you that you must consider each charge separately, the occurrence of one event does not itself prove the occurrence of another.
However if you are satisfied beyond reasonable doubt that any one count has been proved to that standard, you may consider the occurrence of the events you found proved when you're assessing the evidence in relation to, as it were, the next count or another of the counts. But may I remind you, you must consider the evidence on each count separately, although you may include it as part of the material that you use when you're [reaching] a conclusion on another count, but only in the way that I've indicated (ts 479).
The trial judge made similar observations in relation to the use the jury could make of the appellant's prior conviction for a sexual offence.
The 'bootstraps' argument depends upon characterising the relevant propensity evidence as being the appellant's 'guilt' on another count. That is an erroneous characterisation. As is made clear in the trial judge's direction, what is relied on is the occurrence of the events which the jury find to be proved. As with uncharged acts, it is the evidence of what in fact occurred of which the jury is satisfied to the requisite standard that is the relevant evidence, not the finding of guilt.
The appellant contends that s 31A of the Evidence Act does not apply to propensity evidence 'generated from within the trial itself', again being a reference to the finding of guilt. There is no basis in the statutory text, context or purpose for excluding from the scope of s 31A evidence of the commission of another offence charged in the indictment. Reliance is placed on the following passage from the second reading speech for the bill which inserted s 31A:
The Bill will therefore amend the Criminal Code and the Evidence Act so that if a defendant is accused of committing multiple offences, the prosecution may more readily be able to join the charges to be dealt with under the one indictment. An accused person will have a right to appeal against such joinder of offences. At the same time, the proposed amendments will provide the courts with greater capacity to admit propensity and relationship evidence. The court will still need to be satisfied that the evidence has a significant probative value and that the probative value outweighs the risk of an unfair trial. (emphasis added)
The italicised words from the second reading speech do not assist the appellant. The word 'admit' is clearly not appropriate to anything other than evidence. It cannot apply to a finding of guilt. But we are here concerned with evidence of conduct which constitutes an offence. As with uncharged acts and other relevant prior offences, the issue is whether the conduct in question is admissible propensity evidence in the trial of other charges in the indictment. Once that is clearly understood, it is obvious that there is no inconsistency between the challenged direction given by the trial judge and the separate verdicts direction. The purpose of the separate verdicts direction is to ensure that the jury confines its consideration to evidence that is admissible in the trial of the particular charge under consideration.
In his written submissions the appellant relies on authorities from other jurisdictions where evidence relating to other counts in the same indictment was inadmissible as propensity evidence: T v R (1996) 86 A Crim R 293; R v FJB [1999] 2 VR 425. Those authorities have no application where, as in this case, evidence of conduct constituting an

offence the subject of the indictment was admissible propensity evidence in the trial of another charge in the indictment.

There is no reason in principle or authority for treating conduct the subject of other counts in the same indictment differently from uncharged acts or prior offences if it is admissible propensity evidence as to guilt on one or more other charges in the indictment.
I am not satisfied that the ground of appeal has reasonable prospects of succeeding. Accordingly, leave to appeal should be refused and the appeal dismissed.
BUSS JA: I agree with McLure P.
MAZZA J: I agree with McLure P.