GNW v The State of Western Australia - [2024] WASCA 164

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   GNW -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 164
CORAM:   MAZZA JA
VANDONGEN JA
DAVID AJA

HEARD:   10 SEPTEMBER 2024
DELIVERED          :   23 DECEMBER 2024
FILE NO/S:   CACR 1 of 2024
BETWEEN:   GNW
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   VERNON DCJ
File Number            :   IND 1759 of 2022

Catchwords:

Evidence - Appeal against conviction - Where appellant convicted after trial by jury of one count of unlawful and indecent dealing contrary to s 323 of the Criminal Code (WA) - Where appellant previously convicted of sexual offences against young teenage males under his care or supervision committed in 1973, 1976, and 1994 - Whether evidence of previous convictions is admissible as propensity evidence under s 31A of the Evidence Act 1906 (WA) - Where there was lengthy interval of time between commission of the prior offences and the commission of the charged offences - Whether impugned tendency evidence was of 'significant probative value' pursuant to s 31A(2)

Legislation:

Evidence Act 1906 (WA), s 31A

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S Rafferty SC & L Ofri
Respondent	:	L M Fox SC

Solicitors:

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

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

Director of Public Prosecutions (Vic) v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644
DKA v The State of Western Australia [2017] WASCA 44
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338
IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
Karszniewicz v The State of Western Australia [2020] WASCA 121
Lilley v The State of Western Australia [2019] WASCA 164
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
NTH v The State of Western Australia [2020] WASCA 22
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374
The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

JUDGMENT OF THE COURT:

This is an appeal against conviction.
The appellant was charged on a District Court indictment with the following offences:
(a)Between 24 September 2020 and 29 September 2020 at Three Springs, the appellant indecently dealt with the complainant, a child of or over the age of 13 years and under the age of 16 years contrary to s 321(4) of the Criminal Code (WA) (the Code) (count 1).
(b)Between 1 January 2021 and 1 May 2021 at Corrigin, the appellant unlawfully and indecently assaulted the complainant contrary to s 323 of the Code (count 2).
The appellant was the owner of a business known as Tyrepower in Corrigin. As part of a school programme, the appellant employed the complainant to work at his business on a weekly basis. While working at Tyrepower, it became apparent to the appellant that he and the complainant shared an interest in off‑road go‑kart racing. Together, they attended various go‑kart racing meets throughout Western Australia. Those race meets would usually take place over several days, and there were occasions when the appellant and the complainant stayed overnight at various race meets and shared a tent. There was also an occasion when the complainant stayed overnight at the appellant's home before leaving the following day for a race meet.
The State alleged that during a race meet at Three Springs, the appellant while sleeping in the same tent as the complainant touched him on the penis (count 1). The State further alleged that on a separate occasion, while the complainant was staying overnight at the appellant's home before travelling to a race meet the following day, the appellant entered a bedroom where the complainant was sleeping and touched him on the penis (count 2). The charged offences were not isolated but occurred against a background of other uncharged acts of indecent touching (the uncharged acts).
Prior to the commencement of the trial, the State applied to adduce evidence of the appellant's prior convictions for sexual offences (the prior conviction evidence) as propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA) (the Evidence Act). The appellant had been convicted of sexual offences on three separate occasions in 1973, 1994 and 1996. The offences were committed against three boys aged 11, 15 and 16 years. In a ruling delivered on 17 October 2023, Judge Shepherd permitted the State to lead the prior conviction evidence as tendency evidence under s 31A of the Evidence Act.
Following a trial in the District Court before Judge Vernon, the jury returned verdicts of not guilty on count 1 and guilty on count 2.
On 14 December 2023, the appellant was sentenced to immediate imprisonment for 2 years and 8 months and was made eligible for parole.
The appellant now appeals against his conviction on the sole ground that a wrong decision was made on a question of law on the basis that the prior conviction evidence was not admissible under s 31A of the Evidence Act.
For the reasons which follow, we would grant leave to appeal but dismiss the appeal.

The s 31A application

By way of an application dated 19 January 2023, the State sought to adduce the prior conviction evidence as propensity evidence pursuant to s 31A of the Evidence Act. It was the State's contention that the evidence established that the appellant had a sexual interest in teenage boys and a tendency to act upon that sexual interest by touching the boys' penis when they were under his care in the context of camping trips.
The propensity evidence consisted of three prior instances of sexual offending by the appellant against young boys which occurred in 1973, 1976 and 1994. The facts of the prior offending can be summarised as follows:

The offending in 1973

On 12 April 1973, the appellant was convicted of one count of aggravated assault. The appellant and a boy, aged 16 years, went to Margaret River to mark out a course for a senior scout venture. After retiring for the night to their respective sleeping bags, the appellant placed his arm around the victim's shoulders on three or four occasions and finally grabbed hold of the boy's penis after he had gone to sleep. The appellant was 21 years of age in April 1973.

The offending in 1976

In late November 1976, the appellant took a boy aged 15 years, and another male aged 18 years, to Hyden for a weekend shooting trip. On the way back, the 18‑year‑old male was driving the appellant's Ford Falcon utility, which had a bench seat that the appellant and the victim were sitting on. The appellant grabbed the victim and forced him into submission. The victim had recently had a serious operation to his left hand and when the appellant grabbed him, it caused the victim significant pain. The appellant then unzipped the victim's jeans, pulled the victim's jeans and underpants down, and masturbated the victim until he ejaculated. The appellant was 24 years of age in November 1976.
In relation to this incident, the appellant was convicted after trial of one count of indecent assault in October 1996.

The offending in 1994

The 11‑year‑old victim was a friend of the appellant's young nephew. During the first weekend in November 1994, the appellant took the victim and four other young children on a shooting trip in Hyden. The appellant and the three young male children slept in a camp, whilst the other two female children slept in the vehicle. The appellant slept beside the victim. On the second evening, that being 5 November 1994, the appellant whilst lying next to the victim, rubbed his hand on the victim's leg and then fondled the victim's genitals on the outside of his clothing. The appellant was 42 years of age in November 1994.
On 4 May 1995, the appellant pleaded guilty to, and was convicted of, one count of indecently dealing with a child under 13.

Ruling of Judge Shepherd

Over the objection of defence counsel, on 17 October 2023, Judge Shepherd delivered a ruling permitting the State to adduce the prior conviction evidence pursuant to s 31A of the Evidence Act.
Before delivering her ruling, Judge Shepherd provided detailed oral reasons for allowing the State to adduce the prior conviction evidence as tendency evidence. First, her Honour outlined the threshold requirements for admissibility pursuant to s 31A of the Evidence Act, namely that:
(a)the evidence is propensity evidence as defined in s 31A(1);
(b)the court considers the evidence either by itself, or having regard to other evidence adduced or to be adduced, would have significant probative value; and
(c)the court considers that the probative value of the evidence, compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
In relation to the first threshold requirement, Judge Shepherd noted that the term 'propensity evidence' as defined in s 31A(1) includes, amongst other things, evidence of the conduct of an accused person and evidence of the tendency that an accused person has or had; and that the word 'tendency' in this context, so far as was relevant, referred to a proclivity, an inclination, a disposition, a pre‑disposition or a predilection that an accused has or had.
Judge Shepherd considered that evidence of an accused person's sexual interest in children and a willingness to act on that sexual interest constituted evidence of a tendency within the meaning of 'propensity evidence' as defined in s 31A(1).
As to the second threshold requirement, that being the question of whether the propensity evidence had 'significant probative value', Judge Shepherd referred to and applied the principles outlined by the High Court in McPhillamy v The Queen.[1] Her Honour was satisfied that the propensity evidence (as established by the prior conviction evidence, either of itself or having regard to other evidence) had significant probative value in establishing the commission of both charged sexual acts. Her Honour also considered that in relation to count 1, the evidence was of significant probative value in proof of the identity of the offender; that is, to prove that the offender was the appellant rather than JM, another person who was also present in the tent at the material time.
[1] McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045.
In reaching her conclusion as to the significant probative value of the evidence, Judge Shepherd analysed the similarities and differences between the prior offending and the charged offending.
Judge Shepherd found that the prior offences all shared the following similar features:
(a)the victim was under the supervision and care of the appellant, and was away with the appellant, or about to travel away with the appellant, on a camping trip or some other sort of outdoor leisure activity;
(b)apart from the 1976 offence, the offending occurred at night‑time when the victim was going to sleep either in a tent or in back of the appellant's utility or at the appellant's home before leaving on an excursion;
(c)the victim was a boy aged between 10 to 16 years; and
(d)the sexual conduct involved the appellant placing his hand underneath the victim's clothing and touching his penis.
Judge Shepherd then compared the nature and circumstances of the prior offences with the charged offences before concluding there was a marked similarity between all offences.
Her Honour then considered the effect of the interval of time between the commission of the last of the prior offences in 1994 and the commission of the charged offences in 2020 and 2021 on the probative value of the evidence. In considering the effect of the intervening 26 to 27 years, her Honour emphasised two broad matters. First, the prior offending, looked at as a whole, demonstrated that while the appellant was capable of desisting from sexually offending against teenage boys for a period of time, he reverted to offending against boys under his supervision in broadly similar circumstances. Secondly, the appellant's age at the time of the prior offences ranged from 21 years (in 1973) to 42 years (in 1994). Accordingly, none of the prior offending could be characterised as an aberration confined to a particular period of time when the appellant was of a particular age, for example, a youth. Moreover, the prior offending was not confined to a single victim.
Judge Shepherd ultimately found that, notwithstanding the lengthy interval between the commission of the prior offending and the circumstances of the charged offences, the propensity evidence was capable of demonstrating that the appellant had a sexual interest in young teenage boys, and a willingness to act upon that sexual interest, as at the time of the charged offences. Her Honour was satisfied that in respect of both charged offences, the propensity evidence was significantly probative in proof of the commission of the indecent touching as alleged by the complainant, as well as to establish the identity of the offender.
As to the third threshold requirement for admissibility under s 31A, Judge Shepherd considered that the probative value of the propensity evidence compared to the degree of risk of an unfair trial was 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. Her Honour also found that the risk of any impermissible prejudice was able to be satisfactorily guarded against by directions from the trial judge.

The State case at trial

The trial proceeded before Judge Vernon on 20 November 2023.
Judge Vernon re‑visited the ruling as to the admissibility of the propensity evidence and ultimately concluded that, in relation to count 1, the evidence was admissible only to prove the identity of the offender but was not also admissible to prove that the appellant indecently touched the complainant in the manner he described.
In relation to count 2, Judge Vernon determined that the propensity evidence was admissible only to prove that the appellant indecently touched the complainant in the manner he described but was not also admissible to prove the identity of the offender.
At trial, the complainant's evidence was tendered in the form of a child witness interview conducted on 27 February 2022 (MFI 1) and a recording of his evidence taken on 21 June 2023 (MFI 2).
As stated, the appellant was acquitted of count 1 but convicted of count 2. The following summary of the evidence at trial focuses primarily on the evidence given in relation to count 2.
In relation to count 2, the complainant in his child witness interview said:
(a)He was sleeping at the appellant's house.
(b)During the night, the appellant walked into the bedroom.
(c)The appellant started touching his hips and 'arse'.
(d)The appellant then began touching his penis.
(e)The appellant patted his 'arse' slowly and put his hand down the complainant's pants.
The complainant was 16 years of age at the time of count 2.
The State also adduced evidence from the complainant's parents as to the fact the complainant stayed overnight at the appellant's house, and as to those occasions he accompanied the appellant on race meets.
JM also gave evidence at trial. He worked at Tyrepower and lived at the appellant's home for various periods. He travelled with the appellant and the complainant to the Three Springs race meet and stayed the night in the tent on the occasion the subject of count 1. Relevantly to count 2, JM said that he could not recall any occasion when the appellant entered a bedroom at his home where the complainant was sleeping.
The investigating officer, Detective Senior Constable McSevney gave evidence that on 28 February 2022, she conducted an electronically recorded interview with the appellant at Corrigin police station. An edited version of that interview was tendered to the court (Exhibit 9). During his electronically recorded interview, the appellant was advised of the allegations, which he denied. Relevantly, he said:
(a)The complainant completed a traineeship at Tyrepower from the beginning of 2020 until June 2021. He would work one day per week from 7.30 am to 5.00 pm.
(b)The complainant expressed interest in a go‑kart which the appellant kept at his workplace.
(c)Through the appellant, the complainant became involved with the junior development group of the Off-road Racing Association.
(d)The appellant took the complainant to racing events on more than one occasion.
(e)The appellant agreed the complainant (and his brother) stayed at his house on one occasion before leaving for a 'working bee' the following morning. He denied there was any occasion on which the complainant slept at his house before travelling to a race meet the following day.
(f)The appellant never had the complainant or his brother at his house on their own.
As to the prior conviction evidence, the facts of those offences were read aloud by the prosecutor during her opening address and reduced to writing and tendered as Exhibit 4. In her closing address, the prosecutor submitted that the evidence demonstrated the appellant had a sexual interest in young boys and a tendency to act on that sexual interest by touching them on the penis when the boys were under his care in the context of camping trips. In relation to count 2, the prosecutor submitted to the jury that if they were satisfied that the prior conviction evidence established that tendency, they could reason that it was more likely that the appellant indecently touched the complainant in the manner he alleged.

The defence case

The appellant did not give evidence nor call any evidence at trial.
Defence counsel relied on the appellant's denials of the charged offending in his electronically recorded interview. Moreover, defence counsel submitted that the complainant's evidence was undermined by inconsistencies in his evidence. Specifically, in relation to count 2, it was submitted that given JM gave evidence that he was present on an occasion when the complainant stayed overnight at the appellant's home, the prosecution had not excluded as a reasonable possibility that JM was, in fact, the offender. Defence counsel also emphasised the forensic disadvantage caused by the delay in the charges proceeding to trial.
As to the propensity evidence, defence counsel referred to the limited use of the evidence and emphasised that it would be impermissible for the jury to reason that because the appellant has prior convictions, he was necessarily guilty of either charged offence.

The trial judge's directions as to the propensity evidence

In her summing up, the trial judge gave the following directions as to the use of the propensity or tendency evidence. Her Honour said:
Now, I need to give you a direction about the evidence that you heard that [the appellant] had previous convictions for assault and indecent dealing against young boys.
…
Now, you may have heard the words propensity and tendency used. I'm going to just use the word tendency. The State relies on that prior conviction evidence as showing a tendency on [the appellant's] part to have a sexual interest in young boys and to act on that sexual interest by touching them on the penis when he has the opportunity to do so when the boys are under his care in the context of camping trips.
It's a matter for you whether you find that the prior conviction evidence does show that [the appellant] had that tendency at the time of the alleged offending in this case, noting the difference in the offences. In particular, the 1994 offence was over the clothing, not inside the clothing. The 1976 offending involved an assault on the 15‑year‑old in a car with another person present. The offending was also some time ago.
[The appellant] said in his interview that his birthday ‑ his interview with police that his birthday was in March 1952, so accordingly, the most recent offence was about 29 years ago when [the appellant] was about 42, and the earliest offence was about 50 years ago when he was about 20.
It's a matter for you to determine whether those differences or the time that has passed affect the weight you give to that prior conviction evidence.
However, I'm now going to tell you how you may use and how you may not use the evidence of the facts of the prior convictions in relation to each count. And I'm going to deal with each count separately because the way you can use the evidence is different in relation to each count, and I want to make sure you understand that. And that will mean that there will inevitably be some repetition in what I say. But I'm doing that, not because I want to be unnecessarily repetitive, but just so that you appreciate that the evidence is being used in different ways in relation to each count, or at least the State is asking you to use the evidence in different ways in relation to each count.

The trial judge then directed the jury as to the permissible and impermissible uses of the propensity evidence in relation to count 1 consistent with her earlier ruling. Next, her Honour turned to give the jury directions as to the use of the evidence on count 2. Relevantly, her Honour said:
So, turning to count 2. Now, you will recall in relation to count 2 [the complainant] said that he was staying over at [the appellant's] house, and that he was alone in the house with [the appellant] and again he had his back to the person who touched him and he recognised that person was [the appellant] because of the feel of his hands.
The State relies on the prior convictions evidence as going to prove whether the touching occurred as [the complainant] described.
In relation to count 2 the State asks you to accept [the complainant's] evidence that someone came into the bedroom where he was sleeping when he was alone in the house with [the appellant], and to infer from that and from [the complainant's] evidence that he recognised the person by the feel of his hands, that [the appellant] was the person who came into [the complainant's] bedroom on that occasion.
And I've told you how you may make inferences in a criminal trial.
In relation to count 2, the State says that the evidence that [the appellant] had a tendency to have a sexual interest in young boys and to act on that sexual interest by touching them on the penis when he had the opportunity to do so, when the boy was under his care in the context of camping trips, makes it more likely that when [the appellant] was in the bedroom with [the complainant] on that occasion, if you find that he was, [the appellant] did touch [the complainant] on the penis as [the complainant] says.
That is, assuming you are satisfied beyond reasonable doubt on the other evidence before you that it was [the appellant] who came into the room, the prior convictions evidence may be used by you in finding it is more likely [the appellant] did touch [the complainant's] penis on that occasion.
That is, the evidence goes to the second element of whether the touching of [the complainant's] penis happened. Or the second and third element in count 2 of whether the touching of the penis, the indecent assault, occurred.
For you to use it in that way, you must first accept [the complainant's] evidence to the effect that it was [the appellant] that came into his room. The tendency of [the appellant] to touch boys on their penises in the circumstances referred to, if you find he has that tendency, cannot help in your consideration of count 2 if you're not satisfied it was [the appellant] who was in [the complainant's] room.
If you're not satisfied beyond reasonable doubt it was [the appellant] in [the complainant's] room, you will not be satisfied of the element of identity in count 2 and you will find [the appellant] not guilty.
Now, the prior conviction evidence is part of the facts and circumstances against which you are to judge whether [the appellant] committed the offence in count 2 in the way that I have identified and it would be open to you to find that the evidence of the prior convictions increases the likelihood that [the complainant] was touched in the way alleged in count 2. However, again I need to give you directions of law about how you cannot use the prior convictions evidence.
Again, the prior convictions evidence cannot of itself prove the offence in count 2. You cannot use the prior convictions evidence in substitution for evidence you have heard in this case about the offence in count 2. You must not reason that just because of the prior convictions [the appellant] is therefore guilty of the offence in count 2.
In other words, it does not automatically follow from the prior convictions evidence that [the appellant] committed the offence in count 2. That evidence does not necessarily mean that [the appellant] touched [the complainant] on the penis on this occasion, assuming you find he was the person in [the complainant's] room. People do not always act in accordance with their inclinations or tendencies at every opportunity.
Ultimately on count 2, what you have to decide on the evidence which you accept is whether the State has established beyond reasonable doubt that [the complainant] was touched on his penis and that it was [the appellant] who did that.
That depends on your being satisfied beyond reasonable doubt about the truthfulness, accuracy and reliability of [the complainant's] evidence as to those essential elements and you could not convict [the appellant] unless the State has satisfied you beyond reasonable doubt that [the appellant] committed the specific act alleged in count 2. So that's what I'm going to say to you about tendency and the prior convictions.
There was no challenge as to the adequacy of those directions either at trial or on appeal.

Ground of appeal

The appellant appeals on a single ground, namely:
1.A wrong decision was made in respect to a question of law in that the prior convictions from 1973, 1976 and 1994 should not have been admitted into evidence pursuant to s 31A of the Evidence Act 1906.
1.1On 17 October 2023, Judge Shepherd ruled, inter alia, that the appellant's conduct giving rise to prior convictions for sexual offending against children in 1973, 1976 and 1994 were admissible pursuant to s 31A of the Evidence Act 1906.
1.2The State relied upon the conduct to establish that the appellant had a tendency to have a sexual interest in young boys and to act on that interest by touching them on the penis when he had the opportunity to do so when the boys were under his care in the context of camping trips.
1.3The act the subject of count 2 was alleged to have occurred between 1 January 2021 and 1 May 2021, that being approximately 27 ‑ 28 years after the last act of sexual offending against a young male occurred.
1.4The evidence admitted pursuant to s 31A of the Evidence Act 1906 did not satisfy one of the prerequisites for admission, that being that the tendency evidence was of significant probative value.
1.5Proof of the prior offending in this case was not capable of affecting the likelihood that the appellant committed the offence against the complainant to a significant extent. It did no more than demonstrate that the appellant had committed sexual offences against young males approximately 48, 45 and 28 years prior to the alleged offence in 2021.

The parties' submissions

Before this Court, the appellant contends that the prior conviction evidence, while having a basal relevance, was not of significant probative value in proof of any fact in issue in relation to count 2. The appellant relies on McPhillamy and submits that the absence of evidence that the appellant acted upon his sexual interest in young boys under his supervision for approximately 26 to 27 years following the last prior offence rendered the probative value of the evidence weak. It is said that the tendency evidence reaches no higher than establishing that the appellant had engaged in sexual behaviour with young males between the ages of 11 and 16 years somewhere between 27 and 48 years prior to count 2.
Moreover, the appellant contends that there was no unifying link between the circumstances of the prior offences and the circumstances of count 2 which had the capacity to enhance the probative value of the propensity evidence.
Consequently, it is the appellant's contention that the propensity evidence was not significantly probative of any fact in issue and the trial judge erred in allowing the evidence to be adduced pursuant to s 31A. The appellant contends that this is not an appropriate case to apply the proviso.
On the other hand, the State relies on the recent High Court authority of Director of Public Prosecutions (Vic) v Roder (a pseudonym),[2] and contends that, having regard to both the prior conviction evidence (viewed in its entirety) and the complainant's evidence of the charged acts, the propensity evidence established that the appellant had an entrenched and enduring sexual interest in young males under his supervision, and a willingness to act upon that sexual interest by touching young males on the penis, as at the material time in 2021. The prior conviction evidence was of significant probative value in relation to the assessment of the probability of the factual issue in dispute in relation to count 2, that being whether the appellant in fact touched the complainant on the penis.
[2] Director of Public Prosecutions (Vic) v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644.
The State contends that there were marked similarities between the circumstances of the prior offending and the circumstances of the charged acts, and McPhillamy is factually distinguishable from this case.
In those circumstances, the State contends there was no error by the trial judge in allowing the State to adduce the prior conviction evidence pursuant to s 31A.

Disposition of the appeal

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.
It can be seen that neither propensity evidence nor relationship evidence, as defined, will be admissible under s 31A unless the court considers that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and 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.
Whether evidence has significant probative value is a question to which there is only one correct answer although reasonable minds may differ as to the outcome. That being so, this Court determines whether the evidence was admissible under s 31A by reference to the 'correctness standard' (and the principles enunciated in Warren v Coombes[3]) and not by reference to the principles outlined in House v The King.[4] See Stubley v The State of Western Australia;[5] IMM v The Queen;[6] DKA v The State of Western Australia.[7]
[3] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531.
[4] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[5] Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374.
[6] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300.
[7] DKA v The State of Western Australia [2017] WASCA 44 [33] ‑ [34].
In RMD v The State of Western Australia,[8] Beech J (with whom Mazza JA agreed) referred to DKA and summarised the principles relevant to the meaning of the phrase 'significant probative value' as defined in s 31A as follows:
[8] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185].
(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)

These principles are well established and have been adopted in numerous decisions of this Court.[9]
[9] Lilley v The State of Western Australia [2019] WASCA 164 [59]; NTH v The State of Western Australia [2020] WASCA 22 [108]. See also The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [20] ‑ [23]; Karszniewicz v The State of Western Australia [2020] WASCA 121 [44].
In TheState of Western Australia v Jackson,[10] the following additional points were made:
First, the term 'propensity evidence', as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence ... of a tendency that the accused person has or had'. The word 'conduct', in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a) the evidence is capable of proving the propensity; and
(b)proof of the propensity increases the likelihood of the commission of the offences.
Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'. For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.
Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value. (footnotes omitted)
[10] TheState of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [20] ‑ [23].
In the present case, the issue for determination is whether the prior conviction evidence, either by itself, or having regard to other evidence adduced at the trial, established that, at the material time, the appellant had the alleged tendency, which had significant probative value in relation to count 2, in proving that the appellant did in fact touch the complainant's penis in the manner described by the complainant. The appellant, in his submissions to this Court, did not challenge the proposition that the prior conviction evidence was capable of proving that the appellant had a tendency to have a particular state of mind; namely, that he had a sexual interest in teenage boys. However, it was contended that in the absence of any evidence of offending by the appellant from 1994 to 2021; that is, a period of approximately 26 to 27 years, the prior conviction evidence was not capable of establishing a willingness to act upon his sexual interest in teenage boys as at the time of the commission of count 2, in 2021. Therefore, the appellant submits that the prior conviction evidence was not of significant probative value in proving a fact in issue, namely that the appellant did in fact touch the complainant on the penis in the manner he described. Accordingly, the appellant contends that the evidence was not admissible under s 31A.
The process of assessing whether evidence has significant probative value is an open-textured, evaluative task.[11] That task is sensitive to the facts and circumstances of each particular case. In undertaking this task, s 31A(2)(a) expressly requires that a court is not to consider the propensity evidence in isolation, but rather the evidence is to be assessed having regard to other evidence adduced or to be adduced at trial.
[11] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [42].
At the appeal hearing, a question arose as to whether, in assessing the probative value of the prior conviction evidence, regard could be had to the circumstances of the alleged charged acts the subject of count 2. If so, contrary to the appellant's submissions, there was in fact evidence that the appellant had, after the last of the prior offences in 1994, acted upon his sexual interest in young males under his care or supervision, by indecently touching the complainant's penis; albeit, the relevant evidence formed the basis of the charged offence.
If this Court were permitted to have regard to the complainant's evidence as to the circumstances of the charged act the subject of count 2, the evidence would necessarily strengthen the probative value of the prior conviction evidence by showing that the appellant's sexual interest in young males and his willingness to act upon that sexual interest still existed in 2021. The evidence of the charged act, if accepted by the jury for this purpose, was capable of reinforcing the entrenched and enduring nature of the appellant's sexual interest in young boys, and his willingness to act upon his sexual interest in young males, as established by the prior conviction evidence, notwithstanding the absence of evidence of any like offending conduct between 1994 and 2021. In this way, the complainant's evidence as to the circumstances of count 2 is capable of strengthening the probative value of the prior conviction evidence.
The issue of whether a court can take into account the conduct the subject of the charged offences when considering whether evidence has 'significant probative value' as propensity evidence was recently considered by the High Court in Roder. The High Court held that any assessment of whether evidence has 'significant probative value' as tendency evidence is to be undertaken having regard to other evidence, including the evidence of the charged act.

In Roder, the respondent was charged with 27 sexual offences committed against two complainants, who were the children of his former domestic partner. The prosecution sought to rely on various pieces of evidence to establish a tendency on the part of the respondent to have a particular state of mind, that being an improper sexual interest in the complainants; and a willingness to act in a particular way, namely by using his position of trust, his physical proximity to, and his relationship with the complainants to engage in sexual activity with them. Some of the evidence sought to be adduced corresponded with an incident the subject of charges on the indictment.
Defence counsel conceded at trial that the evidence of the charged acts was admissible as tendency evidence.
Prior to the commencement of the trial, the trial judge delivered a ruling that the jury would be directed that before they could use the evidence the subject of the charges on the indictment for tendency purposes, the jury must find that conduct proved beyond reasonable doubt.
The Victorian Court of Appeal refused leave to appeal against that interlocutory decision.
On appeal to the High Court, the applicant raised two grounds of appeal: first, whether the direction proposed by the trial judge was precluded by s 61 of the Jury Directions Act 2015 (Vic); and secondly, if it was not so precluded, whether it was erroneous for the trial judge to give the proposed direction.
The High Court, allowing the appeal held, inter alia, that ordinarily trial judges should not direct a jury that before they act on evidence of charged acts to support an alleged tendency on the part of an accused, they must be satisfied of proof of the charged acts beyond reasonable doubt.
The High Court considered that for a tribunal of fact to find that an alleged tendency has been proved to a lesser standard by relying on direct evidence of charged acts, and then deploying that tendency in determining whether the charged acts have been proved beyond reasonable doubt did not involve circular reasoning. Rather, the jury was considering the same evidence 'at different stages of its deliberations with a different onus of proof and for a different purpose'. The High Court said at [35]:
In any event, this alternative submission overlooks the nature of tendency evidence and tendency reasoning as explained above. Tendency evidence has been described as evidence that on 'another occasion or occasions' different to the occasion the subject of a charge, the accused 'acted in a particular way'. If so described, the direct evidence of a particular charged act would not be admitted as tendency evidence in relation to that same charged act. However, as already explained, any assessment of whether evidence relating to 'another occasion or occasions' to a particular charged act has significant probative value for the purpose of determining its admissibility as tendency evidence is to be undertaken 'having regard to other evidence', which includes the evidence of that charged act. The jury's assessment of the weight or strength of the evidence involves similar reasoning. (footnotes omitted)
Applying the principles articulated in Roder to the present case, the court, in its assessment of whether the prior conviction evidence would have significant probative value, must have regard to other evidence adduced or to be adduced including the evidence of the charged act.
Turning now to consider more directly the admissibility of the prior conviction evidence under s 31A, we are satisfied that the prior conviction evidence, having regard to the other evidence adduced at the trial including the circumstances of the charged act, was capable of establishing the alleged tendency, and would have significant probative value in proving that the appellant, in fact, placed his hands on the complainant's penis in the manner described by the complainant. We have reached that conclusion for the following reasons.
First, the prior conviction evidence established that the appellant had an entrenched sexual interest in young males under his care and supervision, and a willingness to act upon that sexual interest by touching the young male's penis, in the context of accompanying the child on a trip away or preparing to do so, be it for camping trips or other outdoor excursions. That tendency existed in the mid 1970s as well as the mid 1990s and spanned several decades. As such, it was not confined to a particular period of time when the appellant was a particular age, nor was it confined to a particular victim. Moreover, after a period of not acting on his sexual interest in young males, the appellant reverted to doing so in 1976, again in 1994, and, if the jury accepted the complainant's evidence of the charged act (count 2) for this purpose, again in 2021.
It is to be accepted that the fact that there was an absence of evidence that the appellant acted on his sexual interest in young males from 1994 to 2021 is a relevant matter to take into consideration. It is a significant period of time during which there was no evidence of the appellant's willingness to act upon that sexual interest. However, once regard is had to the complainant's evidence of count 2 which was allegedly committed in 2021, we do not consider that this interval of time ultimately detracts from the significant probative value of the propensity evidence. That is essentially because of the enduring and entrenched nature of the tendency.
Secondly, the appellant's tendency was identified with reasonable specificity; namely, he had a sexual interest in young males under his supervision and a willingness to act upon that interest by touching the young males on the penis in the context of camping trips or outdoor excursions.
As Buss P explained in RMD at [52]:
The question whether, in a particular case, proposed propensity evidence has significant probative value may depend on the degree of generality or specificity with which the propensity is identified. On the one hand, a propensity which is identified at a high level of generality will, ordinarily, be an obstacle to its having significant probative value. On the other, in general, the closer and more particular the similarity between the alleged propensity and the alleged charged acts, the greater the likelihood that the proposed propensity evidence will have significant probative value. …
However, 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. The matters which must be examined include the nature, quality, extent and duration of the conduct the subject of the proposed propensity evidence, on the one hand, and the nature, quality, extent and duration of the charged acts, on the other, and the nature and extent of any rational connection between the conduct the subject of the proposed propensity evidence and the charged acts. (footnotes omitted)
In this case, the evidence was sought to be adduced to establish that the appellant had a specific tendency, namely his sexual interest in young males under his care and supervision and his willingness to act on that sexual interest by touching the young male's penis.
Moreover, there were marked similarities between the prior conviction evidence and the circumstances of the charged offence which strengthened the probative value of the prior conviction evidence in proving the factual issue in dispute; that is, whether the appellant in fact touched the complainant on his penis. Those similarities include:
(a)All the complainants were male and of a similar age.
(b)All the offences occurred in the context of the complainant being in the company of the appellant during, or for the purpose of accompanying him on a trip away from home ‑ either on a Scout course, shooting trips, off‑road racing events or similar activities.
(c)Except for the 1976 offence, all offences involved the appellant taking advantage of the complainant at night while he was attempting to go to sleep.
(d)All the offences involved the appellant performing a sexual act upon the complainant rather than having the complainant performing a sexual act upon the appellant.
(e)The sexual act always involved the appellant touching or stimulating the complainant's penis.
Whilst it is true that there were differences between the circumstances of the prior offences on the one hand, and the circumstances of count 2 on the other, those differences concerned minor matters (such as the fact the complainant was staying overnight at the appellant's home while preparing to go to a race meet rather than already being on an excursion with the appellant), which ultimately did not detract from the significant probative value of the evidence. The marked similarities between the prior conviction evidence and the circumstances of count 2 rendered the evidence significantly probative of the main fact in issue, that being whether the appellant in fact touched the complainant on the penis in the manner he described.
Thirdly, and in relation to the appellant's reliance on McPhillamy, the present case is distinguishable on its facts. In McPhillamy, the offender was convicted, following a trial by jury, of six counts of sexual offending committed against A, who was then 11 years of age. The offences were committed on two occasions between 1 November 1995 and 31 March 1996 in the public toilet of a cathedral. At the time of the offending, the offender was an acolyte at the cathedral, and A was an altar boy who was under the offender's supervision.
On the first occasion, A alleged that the offender followed him into the toilet and masturbated in front of him. A said the offender had encouraged A to masturbate and he had briefly touched A's penis. On the subsequent occasion, A said that the offender again followed him into the toilet where he masturbated in front of him, encouraged A to masturbate and then stimulated A's penis. A said the offender caused him to perform oral sex on the offender.
At trial, the prosecution adduced tendency evidence from two witnesses: B and C. The evidence was admitted under s 97(1) of the Evidence Act 1995 (NSW). Section 97 conditions the admission of evidence to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, on the court's assessment that the evidence will, by itself or taken with other evidence adduced by the party seeking to adduce it, have 'significant probative value'.
The witnesses B and C were boarders at a college where the offender was an assistant housemaster. They each gave evidence that in 1985, when they were aged 13 years, the offender committed sexual offences against them in circumstances where they went to the offender's bedroom to be comforted when homesick. The witness B said that the offender cuddled him and rubbed his genitals, and on a second occasion when B stood naked by his locker, after showering, indecently touched his buttocks. The witness C gave evidence of an occasion when he was upset and homesick and visited the offender in his room. There, the offender massaged his shoulders and back and touched his genitals. On a subsequent occasion the offender again massaged him. The witness C fell asleep and woke to find the offender kneeling near his groin, and he felt a sensation of wetness. The prosecution relied on the unchallenged evidence of the witnesses B and C as evidence of the offender's tendency to have a sexual interest in young teenage boys under his supervision, and his willingness to act on his sexual interest in teenage boys. The offender was found guilty of all counts.
The offender appealed against the convictions on the ground that the tendency evidence had been wrongly admitted. The New South Wales Court of Criminal Appeal dismissed the appeal by majority. Justices Harrison and Hulme considered that a jury applying its collective wisdom and common sense could reason that a sexual interest in young teenage boys was unlikely to become attenuated over an interval of 10 years. Justice Meagher (dissenting) reasoned that while the offender's earlier conduct towards B and C manifested a sexual interest in young teenage boys, it did not demonstrate a willingness to act on that sexual interest in the circumstances described by A.
The High Court, allowing the appeal, held that the evidence did not meet the requirement of 'significant probative value' for admission as tendency evidence. Relevantly, Kiefel CJ, Bell, Keane and Nettle JJ said at [30] ‑ [32]:
It may be accepted that the evidence that the appellant had acted on his sexual interest in young teenage boys on the occasions with 'B' and 'C' is relevant to proof that he committed the offences alleged by 'A', but it is not admissible as tendency evidence unless it is capable of significantly bearing on proof of that fact. In the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the College, the inference that at the dates of the offences he possessed the tendency is weak.
Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. The suggested link in this case is the appellant's tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over 'A', an altar boy, when the two were at the Cathedral for services in 1995 - 1996. The evidence does not suggest that 'A' was vulnerable in the way that 'B' and 'C' were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with 'A''s account that the appellant followed him into a public toilet and molested him.
'B''s and 'C''s evidence established no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against 'A' to a significant extent. It rose no higher in effect than to insinuate that, because the appellant had sexually offended against 'B' and 'C' ten years before, in different circumstances, and without any evidence other than 'A''s allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that 'A' alleged. The tendency evidence did not meet the threshold requirement of s 97(1)(b) of the Evidence Act. This conclusion makes it unnecessary to address the submissions respecting s 101(2) of that Act. (footnotes omitted)
The present case can be distinguished on its facts from McPhillamy. The prior conviction evidence established that the appellant had a sexual interest in young males, and a willingness to act upon that sexual interest by touching or stimulating their penis during the 1970s when the appellant was aged in his early 20s, and again in 1994, when he was aged in his early 40s. That evidence combined with the complainant's evidence as to the charged act which allegedly occurred in 2021, when the appellant was aged in his late 60s, demonstrated that the appellant's tendency to have a sexual interest in teenage boys and his willingness to act upon that interest persisted over many decades. This was an important point of distinction with McPhillamy.
Moreover, unlike McPhillamy, this was not a case where the tendency was expressed at a high level of generality involving a basal sexual interest in a class of people (young teenage males) without more. Rather, the tendency evidence not only demonstrated a sexual interest in young males under the appellant's supervision, but also a willingness to act upon that sexual interest in a particular manner; namely, by indecently touching the penis of young males, usually while they were trying to fall asleep, and in the context of a trip away from home or in preparation for such a trip, whether that was go‑kart racing, a camping trip or other outdoor excursion.
This was not a case where the evidence had only a 'basal relevance' to the facts in issue on count 2 and established no more than that the appellant had sexually offended against other young males many years earlier.
Fourthly, the trial judge directed the jury that the permissible use of the propensity evidence in relation to count 2 was confined to the question of whether the appellant, in fact, indecently touched the complainant in the manner he described. The evidence was not left as relevant or admissible on the question of the identity of the offender. In this way, the trial judge's directions to the jury properly identified and limited the use to which the jury might put the prior conviction evidence in their consideration of count 2.
For those reasons, we are satisfied that the prior conviction evidence, having regard to the other evidence adduced at the trial, including the complainant's evidence of the charged acts, established that at the material time the appellant had the alleged tendency, and the evidence had significant probative value in relation to proof that the appellant did, in fact, touch the complainant's penis as he described in relation to count 2.
Whilst not challenged on this appeal, we are also satisfied 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. We are fortified in that conclusion by the comprehensive directions by the trial judge which are not the subject of challenge on this appeal.
For those reasons, we would dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ST
Associate to the Honourable Justice Mazza
23 DECEMBER 2024