Hall v The State of Western Australia - [2013] WASCA 165

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HALL -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 165

CORAM: MARTIN CJ
BUSS JA
MAZZA JA

HEARD: 12 MARCH 2013

DELIVERED : 24 JULY 2013

FILE NO/S: CACR 4 of 2012

BETWEEN: SHANE ANTHONY HALL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FENBURY DCJ
File No  :IND 694 of 2010

Catchwords:

Criminal law - Appeal against conviction - Indecent dealing with a child under 13 - Sexual penetration of a child under 13 - Whether propensity evidence is admissible under s 31A of the Evidence Act 1906 (WA) without a determination by the court under that provision

Legislation:

Criminal Code (WA), s 320(2), s 320(4)
Criminal Procedure Act 2004 (WA), s 98(1)
Evidence Act 1906 (WA), s 31A, s 106HB

Result:

Leave to appeal on ground 2 granted
Leave to appeal on grounds 1, 3, 4 and 5 dismissed
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr S A Gabriel
Respondent: Ms S H Linton

Solicitors:

Appellant: Stephen Gabriel
Respondent: Director of Public Prosecutions (WA)

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

Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291
Daniels v The State of Western Australia [2012] WASCA 213
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292
LBC v The State of Western Australia [2011] WASCA 201
Longman v The Queen (1989) 168 CLR 79
MRO v The Queen [2010] VSCA 240; (2010) 29 VR 527
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
R v Soma [2003] HCA 13; (2003) 212 CLR 299
R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412
R v TJB [1998] 4 VR 621
VO v The State of Western Australia [2012] WASCA 6

MARTIN CJ: This appeal should be dismissed for the reasons given by Mazza JA with which I agree.
BUSS JA: The appellant has appealed against conviction.
He was tried in the District Court, before Fenbury DCJ and a jury, on seven counts in an indictment. All of the counts alleged various forms of child sex abuse. He was convicted on five counts and acquitted on the other two.
The jury found him guilty of two counts of indecently dealing with KJH, a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA) (the Code) and one count of sexually penetrating KJH, a child under the age of 13 years, contrary to s 320(2) of the Code.
The jury also found him guilty of two counts of sexually penetrating KMH, a child under the age of 13 years, contrary to s 320(2) of the Code.
The complainants were the appellant's grandnieces.
The State's case at trial, the appellant's case at trial and the grounds of appeal are set out in the reasons of Mazza JA, with which Martin CJ has expressed his agreement.
I agree with Mazza JA, for the reasons he gives, that grounds 1, 3, 4 and 5 are without merit. I also agree with his Honour that ground 2 fails, but for different reasons.

Ground 2: its substance

Ground 2, as developed at the hearing of the appeal, alleges in substance that the trial judge made an error of law in permitting the State to adduce propensity evidence from BL, the complainants' mother, without a ruling having been made as to its admissibility under s 31A of the Evidence Act 1906 (WA). Alternatively, it is alleged that a miscarriage of justice occurred at the trial as a result of the admission of the propensity evidence without a ruling having been made as to its admissibility under that provision.

Ground 2: the relevant facts and circumstances

The original indictment filed by the State on 28 April 2010 contained seven counts alleging child sex abuse. Three of the counts related to KAW, another of the appellant's grandnieces. Four of the counts related to KMH. None of the counts related to KJH.

On 7 July 2011, the State discontinued the original indictment and filed another indictment. The appellant was tried on the new indictment. This indictment contained three counts of alleged offending against KJH and four counts of alleged offending against KMH. None of the counts related to KAW.
The elements of the four counts in the original indictment relating to KMH were identical to the elements of the four counts in the new indictment relating to her. The only difference between the counts in the original indictment and the counts in the new indictment concerned the date of the alleged offences. The original indictment alleged that each offence against KMH occurred on a date unknown between 31 December 2004 and 26 December 2005. The new indictment alleged that each offence against her occurred on a date unknown between 31 December 2004 and 31 August 2005. There was no material difference between the evidence relied on by the State to prove the offending against KMH, as alleged in the original indictment, and the evidence relied on by the State to prove the offending against her, as alleged in the new indictment. Also, BL's propensity evidence, as relied on by the State, was identical for the purposes of the original indictment and the new indictment.
After 28 April 2010 (when the original indictment was filed) and before 7 July 2011 (when the original indictment was discontinued and the new indictment was filed), Yeats DCJ determined, pursuant to s 98(1) of the Criminal Procedure Act 2004 (WA), that BL's propensity evidence was admissible under s 31A.
After the new indictment was filed, neither the State nor the appellant sought another determination as to the admissibility of BL's propensity evidence under s 31A; in particular, no ruling was sought either at or before the appellant's trial as to the admissibility of the propensity evidence in relation to those counts in the new indictment which alleged offending against KJH.

Ground 2: the appellant's submissions

Counsel for the appellant submitted in essence that, after the original indictment was discontinued and the new indictment was filed, it was necessary for a new determination to be made as to whether BL's propensity evidence was admissible under s 31A, not only in relation to the charges concerning KJH, but also in relation to the charges concerning KMH. According to counsel, the trial judge made an error of law by failing to make this determination; alternatively, a miscarriage of justice occurred as a result of the evidence in question having been adduced without a ruling under s 31A.

Ground 2: its merits

Section 31A provides, relevantly:
(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.
Section 31A was introduced into the Evidence Act by s 13 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA). It was introduced in conjunction with amendments to the law of joinder to override the decision of the High Court in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292.
The Parliament's purpose, in enacting s 31A, was to confer on the courts greater power to admit propensity and relationship evidence. See the second reading speech of the Hon Attorney General: Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004, 4068. It appears that the policy underlying s 31A reflected these observations of McHugh J, in his dissenting judgment in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461:
The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force 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 (529).
See Western Australia, Parliamentary Debates, Legislative Council, 24 September 2004, 6547 and the terms of s 31A itself.
Section 31A is substantially different from the common law. It does not incorporate the test that propensity evidence is inadmissible if there is a rational view of it, when considered with other relevant evidence, that is inconsistent with the accused's guilt. See Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [102] ‑ [130] (Roberts‑Smith JA, Wheeler JA & Miller AJA agreeing); Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] ‑ [73] (Roberts -Smith JA, Wheeler & Pullin JJA agreeing); Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26] (McLure JA, Steytler P & Wheeler JA agreeing).
In s 31A(1), 'propensity evidence' is defined by reference to the conduct, character or reputation of the accused or a tendency that the accused has or had. It includes similar fact evidence. Section 31A(1) defines 'relationship evidence' in more specific terms, by reference to the accused's attitude or conduct towards another person, or a class of persons, over a period of time.
The test for admissibility in s 31A(2)(a) and s 31A(2)(b) applies to both 'propensity evidence' and 'relationship evidence', as defined. Neither 'propensity evidence' nor 'relationship evidence' will be admissible under s 31A unless 'the court considers' that:
(a)the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)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 Daniels v The State of Western Australia [2012] WASCA 213 [49], I made the following observations (Martin CJ & Mazza JA agreeing) about s 31A:
(a)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.
(b)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.
(c)The adjective 'significant', in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence'.
(d)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.
In my opinion, 'propensity evidence' and 'relationship evidence' (as defined in s 31A(1)) are not admissible under s 31A unless the court has determined that the evidence in question satisfies the test for admissibility in pars (a) and (b) of s 31A(2). My reasons for this opinion are as follows.
Section 31A confers on the courts greater power to admit propensity and relationship evidence. It is substantially different from the common law, but the introduction of s 31A did not abrogate the common law governing the admissibility of propensity and relationship evidence. See LBC v The State of Western Australia [2011] WASCA 201 [45] (McLure P) and the cases there cited. By s 31A, propensity evidence or relationship evidence 'is admissible' (and only admissible) in the proceedings 'if' (and only if) 'the court considers' (that is, thinks) that the test for admissibility in pars (a) and (b) of s 31A(2) is satisfied. The ordinary meaning conveyed by the text of s 31A(2) is that the test for admissibility is a precondition that must be satisfied before the propensity evidence or relationship evidence is admissible under s 31A in the proceedings and that the question of admissibility must be determined by the court. If (and only if) the court determines that the test for admissibility is satisfied, then the evidence in question is admissible under s 31A. Section 31A does not confer a discretion to admit or exclude evidence. Also, it is not concerned with the granting of 'leave' by the court to adduce evidence. Rather, it is concerned with the application by the court of a legal standard (that is, the test for admissibility in pars (a) and (b) of s 31A(2)) for the purpose of determining whether the propensity evidence or relationship evidence in question is admissible under s 31A in the proceedings. See, in the context of s 398A (repealed) of the Crimes Act 1958 (Vic), R v TJB [1998] 4 VR 621, 631 ‑ 632 (Callaway JA, Phillips CJ & Buchanan JA agreeing); R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412 [27] (Winneke P, Charles & Batt JJA agreeing); MRO v The Queen [2010] VSCA 240; (2010) 29 VR 527 [45] (Nettle & Neave JJA & Beach AJA).
In the present case, BL's propensity evidence was admissible under s 31A at the appellant's trial on the four counts of alleged offending against KMH because:
(a)Yeats DCJ had determined that BL's propensity evidence was admissible under s 31A in relation to the counts concerning KMH as alleged in the original indictment;
(b)the alleged offences against KMH in the original indictment, that were considered by Yeats DCJ in determining that BL's propensity evidence was admissible, were identical in substance to the alleged offences against KMH in the new indictment;
(c)the only difference between the counts relating to KMH in the old indictment, and the counts relating to her in the new indictment, was the particular as to the period within which the offences were allegedly committed, and the period specified in the new indictment was a sub‑set of the period specified in the old indictment;
(d)there was no material difference between the evidence relied on by the State to prove the offending against KMH, as alleged in the original indictment, and the evidence relied on by the State to prove the offending against her, as alleged in the new indictment;
(e)BL's propensity evidence, as relied on by the State, was identical for the purposes of the original indictment and the new indictment; and

(f)s 31A is concerned with the admissibility of propensity evidence or relationship evidence in proceedings for 'an offence'; that is, the focus is on the alleged offence and not on the indictment.

However, BL's propensity evidence was not admissible under s 31A at the appellant's trial on the three counts of alleged offending against KJH because the court did not determine, either at or before the trial, that the test in pars (a) and (b) of s 31A(2) was satisfied in relation to those counts.
Although BL's propensity evidence was not admissible under s 31A at the appellant's trial on the three counts of alleged offending against KJH, no objection was taken by defence counsel to the State adducing and relying on it generally.
A judge does not make a wrong decision on a question of law by failing to make a decision on a contention that was not put to him or her. See, in the context of a failure by a trial judge to exclude inadmissible evidence to which no objection is made, R v Soma [2003] HCA 13; (2003) 212 CLR 299 [79] (McHugh J); Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291 [45] (Buss JA, Steytler P & Pullin JA agreeing).
In the circumstances, the trial judge did not make an error of law, as alleged in ground 2, by failing to rule that BL's propensity evidence was not admissible on the counts relating to KJH.
Further, if the question of the admissibility of BL's propensity evidence under s 31A in relation to the counts against KJH had arisen for determination, either at or before the trial, the only conclusion reasonably open was that the test in pars (a) and (b) of s 31A(2) was satisfied in relation to those counts. I agree generally with Mazza JA's reasons for deciding that the test was satisfied. I am therefore of the opinion that the admission generally of BL's evidence in relation to all of the counts in the new indictment did not occasion a miscarriage of justice at the trial.
Ground 2 therefore fails.

Conclusion

Leave to appeal should be refused on grounds 1, 3, 4 and 5. The appeal must be dismissed.
MAZZA JA: This is an appeal against conviction.

On 1 December 2011, the appellant was convicted in the District Court, after trial, of two counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA), and three counts of sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Criminal Code. The victims were two of his grandnieces.
The appellant relies on five grounds of appeal alleging various errors of law and miscarriages of justice. The only ground that was seriously pressed was ground 2. As understood, that ground alleged an error of law in respect of propensity evidence led by the respondent at trial.
For the reasons that follow, I am of the opinion that ground 2 and all of the other grounds are without merit. Accordingly, the appeal must be dismissed.

The State's case

The alleged victims were sisters, KJH (born in 1998) and KMH (born in 1996). Their mother is BL. The appellant is BL's uncle.
In 2004 and 2005, KJH, KMH, their siblings and BL were living in a house in a southern suburb of Perth. The appellant and his wife lived in a house in a nearby suburb. The appellant was, at the time, a truck driver. On occasions, KJH and KMH stayed overnight at the appellant's house.
The State alleged that the appellant committed three offences against KJH in late 2004 or 2005. During this period, KJH was 6 or 7 years of age.
KJH testified that on an occasion when she accompanied the appellant on a journey in his truck, he rubbed the inside of her thigh near her vagina (ts 260) (count 1). Later that day, the appellant stopped the truck so that KJH could go to the toilet. KJH said the appellant accompanied her to the toilet and wiped her vagina with toilet paper after she had urinated (ts 260 ‑ 261) (count 2). KJH gave evidence that the next day, the appellant sexually penetrated her by inserting his penis into her vagina while they were on a bunk in the truck (ts 262) (count 3).
The appellant faced five charges in respect of KMH. As with KJH, all of these offences were said to have occurred between late 2004 and 2005. During this period, KMH was either 8 or 9 years old.
KMH gave no material evidence in respect of an incident said to have occurred in the bathroom at the appellant's house which was the subject of counts 4 and 5 on the indictment. The learned trial judge, pursuant to s 108 of the Criminal Procedure Act 2004 (WA), acquitted the appellant of these counts.

KMH testified that, on an occasion when she and the appellant were in the appellant's red four‑wheel drive vehicle, the appellant sexually penetrated her by inserting his fingers into her vagina (ts 205 ‑ 206) (count 6). She said that on another occasion, this time in the appellant's bedroom at his house, he sexually penetrated her by inserting his penis into her vagina (ts 206 ‑ 207) (count 7). KMH said that at some point the appellant gave her $20 so that she did not tell anyone what he had done to her (ts 208).
Neither KJH nor KMH made a prompt complaint. Their testimony was not corroborated, although the appellant, in a video record of interview with the police that was tendered at trial, confirmed some of the background circumstances to the offending. There was no medical or forensic evidence to support the allegations.
The State adduced propensity evidence from BL, alleging that, in 1987, 1988 and 1990, when BL was a young teenager, the appellant had digitally penetrated her. I will describe this evidence in more detail when I deal with ground 2.

The appellant's case

The appellant elected to give evidence and to call evidence from several witnesses.
The appellant denied the allegations made by KJH, KMH and BL. He testified that the allegations only arose after he had asked BL to repay him $3,500 that he had lent to her. Defence counsel, in his opening address, alleged that BL was 'malicious' as a result of the request to repay the loan and that KJH and KMH had been 'influenced' by her to make false allegations against the appellant (ts 197).
All but one of the witnesses called on behalf of the appellant were relatives. Their evidence was largely focused on BL's allegations and was to the effect that they saw nothing untoward occur between BL and the appellant. Good character evidence was led from the witnesses he called.

The grounds of appeal

Until shortly before the hearing of the appeal, the appellant was unrepresented. At the hearing of the appeal, the appellant was represented by Mr Gabriel. The grounds of appeal, as expressed in the appellant's case, are as follows:
Ground 1
The [learned trial judge] erred in law and fact when he allowed the prosecution to use faulty vri's and audio tapes.
Ground 2
The [learned trial judge] erred in law and fact when he allowed the propensity evidence to be included.
Ground 3
The [learned trial judge] allowed these allegations to continue when it was noted by evidence that it was clearly a stop and go proceedings.
Ground 4
The [learned trial judge] erred in law and fact when he failed to advise the jury that there was no medical evidence that could support these allegations, and it was only hearsay evidence produced.
Ground 5
The non disclosure to the [District Court] and Judge and Jury by the prosecution, that the witness BL had in fact serious credibility concerns.
Leave to appeal has been given in respect of ground 2 on the basis that it was, in effect, alleged that her Honour Judge Yeats, on 5 August 2010, made an error in law in deciding that the evidence of BL was admissible pursuant to s 31A of the Evidence Act 1906 (WA). In respect of the other grounds, the question of leave to appeal was referred to the hearing: white AB 4.
Mr Gabriel made no oral submissions in respect of grounds 1, 3, 4 and 5, and relied upon the written submissions made by the appellant in person in support of these grounds (appeal ts 25).
I will deal with grounds 1, 3, 4 and 5 first, and then ground 2.

Ground 1

This ground relates to a visually recorded interview (VRI) of KJH that was beset by technical problems.
In order to understand this ground, some background is required.
The allegations made by KJH to the police were recorded on a disk in the form of a VRI. It had been the respondent's intention to play the disk at trial as KJH's evidence in chief: s 106HB Evidence Act.
KJH gave evidence at the trial from interstate by closed‑circuit television. After she was affirmed, an attempt was made to play the disk. It quickly became apparent that there was a technical problem with the recording. For reasons which are unknown, the volume of the voices of those who were questioning KJH was excessively loud, but KJH's responses were barely audible. The trial was adjourned for approximately an hour to enable counsel to confer and see what might be done. That having occurred and with the appellant's consent, the State abandoned any further attempt to play the disk or rely upon what KJH said in the VRI. It was proposed that KJH's evidence in chief would be adduced viva voce, as it would have been had there been no VRI. It was agreed that defence counsel could use the transcript of the VRI (a copy of which KJH had in her possession) in the event he wished to cross‑examine KJH on any inconsistency between her viva voce evidence and the VRI.
The learned trial judge explained to the jury in a fair and appropriate way what had occurred (ts 255 ‑ 256).
The appellant asserts that he has lost 'a great chance of acquittal' as a result of the jury being unable to hear the answers given by KJH in the VRI. There is no merit to this assertion.
The appellant does not point to any actual prejudice that he has suffered as a result of what occurred. Nothing in the VRI was relied upon by the prosecution. The appellant's trial counsel did not allege that any unfairness was caused to the appellant because of what occurred. It is not suggested that anything KJH said in the VRI that was favourable to the appellant was not repeated in the viva voce evidence. The procedure that was adopted was, in the circumstances of this case, fair and gave rise to no injustice to the appellant. Ground 1 has no reasonable prospect of succeeding. I would not give leave to appeal in respect of it.

Ground 3

It is difficult to understand this ground of appeal. It appears to assert that there has been a miscarriage of justice because the appellant was not charged with any offence until 2009 despite the allegations, or at least some of them, having been made in 2006.
As the respondent pointed out in its written submissions, no application was made by the appellant to permanently stay the prosecution on the basis that delay had irreparably prejudiced his defence. Nor was it said that the proceedings, by reason of the delay, were an abuse of process. On the facts of this case, any such application was foredoomed to fail.
The learned trial judge dealt with the issue of delay in respect of the jury's assessment of the credibility of KJH, KMH and BL, and its effect on the defence case by giving the jury a direction in accordance with Longman v The Queen (1989) 168 CLR 79. No exception was taken to his Honour's direction at trial. It has not been alleged before this court that the direction was in any way defective.
Ground 3 has no reasonable prospect of succeeding. I would not give leave to appeal in respect of it.

Ground 4

This ground alleges that the learned trial judge failed to 'advise' the jury that there was no medical evidence to support the allegations made by KJH and KMH and that 'only hearsay evidence' had been produced. Both allegations are erroneous.
Neither KJH nor KMH testified that they saw a doctor as a result of what the appellant had allegedly done to them. Neither said they suffered any physical injury that warranted medical treatment.
In his summing up, the learned trial judge told the jury more than once that the evidence of each alleged victim was uncorroborated. He told the jury that there was no medical evidence capable of supporting KJH's and KMH's testimonies (ts 410 ‑ 411).
The legal requirement that corroboration of a complainant's testimony is required before a jury may convict an accused of a sexual offence has long been abolished by statute. The jury was entitled to convict on the uncorroborated evidence of each complainant provided it was satisfied beyond reasonable doubt, having considered all of the evidence, of the truth of the complainant's evidence.
The appellant does not specify the allegedly hearsay evidence which he says was adduced. The evidence upon which the appellant was convicted was the direct evidence of KJH and KMH.
Ground 4 has no reasonable prospect of succeeding. I would not give leave to appeal in relation to it.

Ground 5

This ground alleges that there was a failure by the prosecution to disclose to the defence and to the jury that BL had been charged with a fraud involving Centrelink benefits and that the charge had been 'deferred'. It was asserted that this information should have been disclosed because it would have been relevant to the jury's assessment of BL's credibility.
The disclosure obligations of the prosecution in indictable matters are set out in ss 42 and 95 of the Criminal Procedure Act 2004 (WA). They were explained by Hall J (with whom Pullin and Buss JJA agreed) in VO v The State of Western Australia [2012] WASCA 6. If there was material that the prosecutor had knowledge of to the effect that BL had been charged or convicted of fraud, disclosure should have been made to the appellant because a prosecutor ought to have anticipated that BL's credibility would have been a relevant issue at trial.
However, the appellant has adduced no evidence capable of supporting the assertion that BL had been charged with a Centrelink offence or that it had been 'deferred'. The mere assertion of non‑disclosure by the appellant does not make it so.
In order to meet this allegation, the respondent, by an application in an appeal dated 4 February 2013, sought to admit additional evidence, pursuant to s 40(1)(e) of the Criminal Appeals Act. The evidence sought to be admitted comprised an affidavit by Susan Markham, a State prosecutor, and Paul Lyndon Youlden, the principal investigating police officer in the case. The respondent's application was not opposed by Mr Gabriel, and an order was made at the hearing of the appeal granting leave to admit the evidence (appeal ts 43).
The effect of the additional evidence is that BL does not have a criminal record and there is nothing on the WA Police database linking her with any reported frauds.
On the material before this court, the appellant has not demonstrated that the respondent failed to comply with its disclosure obligations. The ground has no reasonable prospect of succeeding. I would not grant leave in respect of it.

Ground 2

The indictment before the jury was the second indictment the respondent had presented against the appellant.
The first indictment, dated 28 April 2010, contained seven charges. Counts 1 to 3 alleged sexual offences against another of the appellant's grandnieces, KAW, who was aged between 7 to 10 years at the time. Counts 4 to 7 concerned KMH and were, in substance, the same charges numbered 4 to 7 in the second indictment. When the first indictment was presented, no charges had been laid in respect of KLH.
On 7 July 2011, the respondent discontinued the first indictment and filed the second indictment. The charges in respect of KAW were not pursued. The charges in respect of KLH were added.
While the appellant was the subject of the first indictment, the respondent foreshadowed adducing propensity evidence from BL pursuant to s 31A of the Evidence Act.
The deposition made by BL and served on the appellant was in these terms. BL was born in 1974. She stated that when she was between the ages of 13 and 15 years, the appellant, on a number of occasions, engaged in sexual behaviour towards her. That behaviour included inserting his finger into her vagina, licking her vagina, touching her breasts and kissing her. She said that these things occurred in her bedroom, the lounge room of her home and in a motor vehicle.
In the deposition, BL referred to three specific events which occurred on Christmas Day 1987, a day at the beginning of 1988 and a day in 1989. She said that on each of these occasions the appellant digitally penetrated her vagina.
The appellant took issue with the admissibility of BL's evidence. A hearing was listed, pursuant to s 98 of the Criminal Procedure Act, to determine the question. That hearing took place on 5 August 2010, before her Honour Judge Yeats at a time when the appellant was still the subject of the first indictment.
Her Honour found that BL's evidence was admissible pursuant to s 31A of the Evidence Act. In her oral reasons for decision, her Honour found that the evidence was propensity evidence as defined in s 31A(1). Yeats DCJ also found that the evidence had significant probative value. Her Honour said:
The evidence of the alleged events concerning the child's mother is evidence of a tendency to engage in sexual activity with a young girl, a member of the accused's extended family, and it also is evidence that shows he was sexually attracted to young females.
In this case it is evidence that's not so similar as to constitute similar fact evidence at common law, but there's an underlying similarity which is that the children, including their mother, were all young girls at the time, they were known to the accused, who they regarded as their uncle, they were members of his extended family and the allegations are that he engaged in sexual activity with them (ts 64).
She went on to say:
[I]n view of the similarities between the fingering - the finger penetrations of young girls' vaginas, of this happening both to the mother and then to her daughters, all being niece or great nieces of this accused, and all happening at times when they were in his care [or] around him because of their relationship to him, in my view the evidence of these alleged events does, given those similarities, have a significant probative value (ts 65).
Her Honour further found that the probative value of the 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 said that any risk of an unfair trial could be alleviated by appropriate directions given by the trial judge to the jury (ts 68).
The second indictment was filed almost a year after Yeats DCJ's ruling. It will be recalled that this indictment effectively substituted the charges in respect of KAW with the charges in respect of KJH. Neither party sought a ruling as to whether the testimony sought to be adduced from BL was admissible propensity evidence in relation to the charges concerning KJH. It might well have been thought by the parties that this was unnecessary. The allegations made by KAW and KJH were broadly of the same nature, and it is most unlikely that the outcome of any application would have been any different.
The appellant now submits that the filing of the second indictment required a fresh application to be made in respect of BL's evidence so that the court could determine the admissibility of that evidence in relation to the charges concerning KJH. The appellant's submission is that the learned trial judge erred in law by failing to take this course, or alternatively there was a miscarriage of justice.
Before dealing with these submissions, I note that they go beyond the ground of appeal for which leave was granted. That ground, as it was understood, was that Yeats DCJ had made an error of law. In his oral submissions, the appellant's counsel did not seriously challenge the correctness of Yeats DCJ's decision. The only argument he put in this regard was that BL's evidence was not significantly probative because the events with which she was concerned occurred when she was in her teens, while the evidence of the child complainants was that they were much younger pre‑pubescent children when the appellant committed the offences against them. This argument must be rejected. The age difference between BL, on the one hand, and KAW and KMH, on the other, was not material. All three were young girls under the age of 16 years. Moreover, it ignores the other factors identified by Yeats DCJ as being similar and which demonstrate the underlying unity in respect of all of the allegations.
The respondent did not take issue with the appellant making the oral submissions that went beyond the terms of the ground as understood, as the respondent was not taken by surprise or prejudiced by the submissions. The appellant had, prior to the hearing of the appeal, filed supplementary written submissions that raised the point and the respondent filed written submissions in reply.
The point now raised by the appellant was not taken at trial. The learned trial judge was not asked to make a decision in relation to it. Accordingly, it cannot be said that his Honour made a wrong decision of law: s 30(3)(b) of the Criminal Appeals Act. The only basis upon which this appeal can be allowed is if the appellant establishes that there has been a miscarriage of justice: s 30(3)(c) of the Criminal Appeals Act.
The appellant's submissions as to miscarriage of justice were confused and difficult to follow. As I understood them, it is now submitted that evidence under s 31A of the Evidence Act cannot, as a matter of law, be admitted without the leave of the court. In other words, it is contended that leave is a condition precedent to admissibility under s 31A of the Evidence Act.
This argument was raised for this court's consideration in LBC v The State of Western Australia [2011] WASCA 201. In that case, because the evidence was admissible at common law, the court (Martin CJ, McLure P and Hall J) found that it was unnecessary to determine the point.
In the present case, the respondent has not argued that BL's evidence was admissible at common law (although it arguably could have been led to rebut the appellant's professed good character). Accordingly, the matter falls to be decided.
Section 31A of the Evidence Act is in these terms:
31A. Propensity and relationship evidence
(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 appellant's arguments focus upon the words in s 31A(2): 'if the court considers'. The appellant submitted that these words created a positive obligation upon a court to consider the criteria in s 31A(2) before allowing propensity evidence to be admitted and that unless the leave of the court was obtained, any propensity evidence was inadmissible. As no such process occurred in respect of the counts relating to KJH, it was submitted that as a matter of law the evidence of BL was inadmissible in relation to those charges.
Counsel for the appellant also submitted, albeit faintly, that if BL's evidence was inadmissible in relation to KJH, the convictions in respect of KMH were a miscarriage of justice. Why this would be was not made clear and the submission must be rejected. An application was made in relation to the charge concerning KMH. Her Honour's decision to admit BL's evidence in respect of those charges was correct.

There are two difficulties with the appellant's submissions. First, the statutory text of s 31A does not require a grant of leave as a necessary precondition to the admissibility of evidence pursuant to s 31A of the Evidence Act.
The wording of s 31A stands in stark contrast to the statutory language of s 36BC and s 19C (read with 19K) of the Evidence Act. Those sections are in these terms:
36BC. Sexual experience of complainant, evidence of
(1)In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any).
(2)The court shall not grant leave under subsection (1) unless satisfied that -
(a)what is sought to be adduced or elicited has substantial relevance to the facts in issue; and
(b)the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.
19C. Protected communications not to be disclosed in criminal proceedings except with leave of court
(1)A person cannot disclose or require disclosure of a protected communication in, or in connection with, any criminal proceedings except with, and in accordance with, the leave of the court.
(2)If a subpoena that purports to require the disclosure of a protected communication is issued without the leave of the court required by subsection (1), the subpoena is of no effect.
(3)An application for leave must be made to the court in writing and must be accompanied by an affidavit stating why the applicant has a legitimate forensic purpose for having leave to disclose or require disclosure of the protected communication.
(4)If the court considers that the supporting affidavit establishes a prima facie case that the applicant has a legitimate forensic purpose for having the leave, the court is to -
(a)fix a day and time for hearing the application; or
(b)determine that the application will be heard during the criminal proceedings referred to in subsection (1),
and send notification of when the application will be heard, together with copies of the application and the supporting affidavit, to -
(c)the applicant and each other party;
(d)each protected person identified in the application or the supporting affidavit; and
(e)any other person identified in the application or the supporting affidavit as a person to whom the protected communication was made.
(5)If the court does not consider that the supporting affidavit establishes a prima facie case that the applicant has a legitimate forensic purpose for having the leave, the court is to notify the applicant accordingly and the application for leave is taken to have been refused.
(6)Section 19E(2) and (3) apply in relation to the court’s consideration of whether the supporting affidavit establishes a prima facie case that the applicant has a legitimate forensic purpose for having the leave.
(7)In this section -
party means a party to the criminal proceedings referred to in subsection (1).
19K. Inadmissibility of evidence that must not be adduced or given
Evidence that, because of the protection provisions, cannot be disclosed or required to be disclosed in proceedings is not admissible in the proceedings.
(emphasis added)
As can be seen, these sections expressly require a grant of leave prior to the evidence the subject of the sections being admitted.
Sections 31A, 19C and 19K were inserted into the Evidence Act by the Criminal Law Amendment (Sexual and Other Matters) Act 2004 (WA). Section 36BC was in place prior to the commencement of s 31A. Had Parliament intended the grant of leave to be a precondition of admissibility in s 31A, it could have easily done so in the same way as it did in s 36BC and s 19C. Further, as s 31A and s 19C were inserted into the Act by the same legislative instrument, the variation in language between the two provisions conveys a clear intention that a grant of leave is not a precondition of admissibility in s 31A.
Second, the words 'if the court considers' must be seen against the backdrop that, in any criminal trial, evidence which is relevant will be received unless either counsel objects to it or the question of its admissibility is raised by the trial judge. The criteria set out in s 31A(2)(a) and (b) governs the basis upon which propensity or relationship evidence may be admitted according to law. In context, the words 'if the court considers' refer to where an accused or the presiding judge calls into question whether the evidence complies with the criteria in s 31A(2). It does not require the making of an application as a precondition to admissibility under that subsection. As there is no requirement for leave to be granted before propensity or relationship evidence is admissible, there cannot be, on the facts of this case, a miscarriage of justice.
Further, BL's evidence was plainly admissible pursuant to s 31A(2) in relation to both complainants. The evidence of BL was both propensity and relationship evidence. It showed that the appellant had a sexual interest in young girls who were members of his extended family and was prepared to act on it. This evidence made it more likely that he had committed the alleged offences. It was significantly probative as required by s 31A(2)(a). The risk that the jury might reason that merely because the appellant engaged in sexual behaviour with BL, he must be guilty of the offences against KJH and KMH, was neutralised by his Honour's direction on the point, which was not challenged. In my view the probative value of BL's evidence was such that fair‑minded people would think that the interests of justice required its admission despite its risks. Ground 2 must fail.
Although I have found that admissibility of propensity and relationship evidence pursuant to s 31A does not depend upon a grant of leave, it is timely to reiterate the comments made in LBC which endorsed the current general practice of applying for leave, preferably before trial, to ensure that any issue is dealt with in a timely and considered way without interruption to the smooth running of the trial.

A final note

The appellant sought to file supplementary submission in a document dated 24 May 2013. The leave of the court was not obtained to file these supplementary submissions. Unless leave is sought and granted they cannot be considered. The submissions are, in any event, misconceived.

Orders

I would make the following orders:
1.Leave to appeal is refused on grounds 1, 3, 4 and 5.
2.The appeal is dismissed.