Hill v The State of Western Australia - [2019] WASCA 209

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HILL -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 209
CORAM:   QUINLAN CJ
BUSS P
MAZZA JA

HEARD:   19 AUGUST 2019
DELIVERED          :   30 DECEMBER 2019
FILE NO/S:   CACR 145 of 2018
BETWEEN:   DARREN WILLIAM HILL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STAUDE DCJ
File Number            :   IND 1017 of 2013

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of four counts of indecent dealing with a child under 13 years - Evidence of uncharged acts led by the prosecution to show the context of the offences charged in the indictment - Evidence of the uncharged acts not admitted or sought to be relied upon by the prosecution as propensity or tendency evidence - Whether the trial judge's directions to the jury in relation to the evidence of the uncharged acts were adequate - Very long delay in filing appeal notice - Whether an extension of time within which to appeal should be granted - Whether judgments of acquittal or a new trial should be ordered

Legislation:

Criminal Appeals Act 2004 (WA), s 30(5)
Criminal Code (WA), s 319(3)(c)
Evidence Act 1906 (WA), s 31A

Result:

Application for an extension of time within which to appeal granted
Leave to appeal granted
Appeal allowed
Judgments of conviction set aside

New trial ordered on counts in respect of which convictions were entered

Category: B

Representation:

Counsel:

Appellant	:	Mr B L Nugawela & Mr M T Tolcon
Respondent	:	Ms G N Beggs

Solicitors:

Appellant	:	Forbes Kirby
Respondent	:	Director of Public Prosecutions (WA)

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

Anderson v The Queen (1991) 53 A Crim R 421
Auons v The Queen [2010] VSCA 223
B v The Queen [1992] HCA 68; (1992) 175 CLR 599
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 388
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
Eastough v The Queen (Unreported, CCA, SCt of WA, Library No 980108, 12 March 1998)
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
Johnson v The Queen [2018] HCA 48; (2018) 92 ALJR 1018
King v The Queen [1986] HCA 59; (1986) 161 CLR 423
Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494
R v AH (1997) 42 NSWLR 702
R v Bauer [2018] HCA 40; (2018) 92 ALJR 846
R v Dolan (1992) 58 SASR 501
R v Grech [1997] 2 VR 609
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v Wilkes [1948] HCA 22; (1948) 77 CLR 511
Wimbridge v The State of Western Australia [2009] WASCA 196

QUINLAN CJ:

I have had the benefit of reading, in draft, the reasons of Buss P and Mazza JA.
I agree with their Honours' reasons and with the orders that they propose. I can briefly state my reasons for so agreeing.
The issue raised by the appeal concerns the use to which evidence of uncharged acts may be put by a jury, in circumstances in which the State does not seek to admit or rely upon that evidence as propensity or tendency evidence (either pursuant to s 31A of the Evidence Act 1903 (WA) or at common law).
That issue is, ultimately, concerned with what processes of reasoning may, or may not, be employed in relation to such evidence in determining whether the accused is guilty of a particular charged offence.
Broadly speaking, the significance of the issue is that, in the case of propensity or tendency evidence (i.e. evidence that the accused had a tendency to act in a particular way), the evidence is relevant to the likelihood that the accused committed the offence or offences charged. In many, if not all, such cases, the evidence is therefore of significant probative value in the proof of the charged acts.[1]
[1] R v Bauer [2018] HCA 40; (2018) 92 ALJR 846 [49] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
Given the obvious force of such propensity reasoning, where evidence of uncharged acts is not adduced as tendency or propensity evidence, it behoves a trial judge to give directions to ensure that such reasoning is not employed by the jury. As the authorities referred to by Buss P and Mazza JA make clear, this involves giving directions as to the use to which the evidence of uncharged acts may be put and the use to which that evidence may not be put.[2]
[2] R v Dolan (1992) 58 SASR 501, 503 (King CJ).
In this regard, the permissible (non-propensity) purpose for which the evidence of uncharged acts may be adduced is often identified, and described, as 'context'. This was the position in the present case.
Two points may be made in relation to evidence said to be evidence of 'context'.
First, as the High Court made clear in Johnson v The Queen,[3] there are a variety of uses that fall within the umbrella of 'contextual' uses (such as explaining a complainant's failure to complain, or an accused's apparent confidence in acting a particular way etc.). Each of these forms of 'context' evidence involves different processes of reasoning. What they all have in common, however, is that they are adduced only to assist in evaluating the evidence of the charged offence itself. Unlike propensity evidence, 'context' evidence does not, of itself, increase the likelihood that the accused committed the offence (and it may not be so used).
[3] Johnson v The Queen [2018] HCA 48; (2018) 92 ALJR 1018 [19] ((Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ).
Secondly, and for this reason, it is generally insufficient to direct a jury that they may use evidence of uncharged acts as 'context', without identifying the particular use that is permitted in the instant case. To describe evidence simply as 'context' may well convey a particular meaning to judges and lawyers. It is unlikely to assist a jury as to the process of reasoning that they are permitted to employ in relation to the particular evidence before them. For this reason, the direction in relation to 'context' evidence should relate to the particular permissible use in the concrete circumstances of the particular case.
Not only does such a direction better identify the use to which 'context' evidence may be put, it should also have the benefit of assisting the jury to appreciate the important difference, so subtle in the abstract, between impermissible 'propensity' reasoning and permissible 'contextual' reasoning.
In the present case, unfortunately, the learned trial judge's directions did not identify for the jury what 'context' meant in the circumstances of the case. His Honour simply identified that the State's position was that the evidence of the uncharged acts 'shows the context of the incidents charged in the indictment, that the offences actually charged were part of an ongoing course of conduct'.[4] Such a direction does not, in my view, sufficiently identify the use which the jury were entitled to make of the evidence (i.e. the permissible process of reasoning).
[4] ts 178.
Without identifying that permitted use, there was a real risk that the jury might employ propensity reasoning in relation to the evidence of the uncharged acts. This is particularly so given that the jury in the

present case were directed by his Honour that they could use such reasoning if they were satisfied of guilt on one count and were considering one of the other counts on the indictment (because they would 'be satisfied that the accused acted in a particular way towards a child on one occasion and that may satisfy you that he had a tendency to act in that way'[5]).
[5] ts 177.

Of course, the learned trial judge's direction that the jury could employ such reasoning if they were satisfied that one of the counts on the indictment had been proven beyond reasonable doubt was entirely proper. Nevertheless, that direction did heighten the risk that the jury may have considered it open to them to employ such reasoning in relation to the uncharged acts, in the absence of a clear direction that they could not do so.
For these reasons, it was incumbent on the learned trial judge to direct the jury both:
(a)as to the particular 'contextual' use to which the jury could put the evidence of the uncharged acts; and
(b)that they could not use that evidence to conclude that the appellant had a particular tendency or that it made the appellant more likely to have committed offences charged.
I agree with Buss P and Mazza JA, for the reasons that their Honours give, that there should be an order for a new trial.

BUSS P & MAZZA JA:

The appellant has applied for an extension of time to appeal and leave to appeal against conviction.
The appellant was charged on indictment with five counts of indecent dealing with a child under 13 years, contrary to s 320(4) read with s 319(3)(c) of the Criminal Code (WA) (the Code).
Counts 1 and 2 on the indictment each alleged that on separate dates between 1 May 2003 and 17 November 2004 at Como, the appellant indecently dealt with BT, a child under the age of 13 years, by showing her pornography. Counts 3, 4 and 5 each alleged that on other separate dates between 1 May 2003 and 17 November 2004 at Como,

the appellant indecently dealt with MT, a child under the age of 13 years, by showing him pornography.

The appellant pleaded not guilty to each of the counts.
On 19 March 2014, after a trial in the District Court before Staude DCJ and a jury, the appellant was convicted of counts 1, 2, 3 and 4, and acquitted of count 5.
On 20 March 2014, Staude DCJ sentenced the appellant as follows:
(a)Count 1: 12 months' immediate imprisonment.
(b)Count 2: 18 months' immediate imprisonment.
(c)Count 3: 6 months' immediate imprisonment.
(d)Count 4: 6 months' immediate imprisonment.
His Honour ordered that the sentence for count 3 be served cumulatively upon the sentence for count 2, with the sentences for the remaining counts to be served concurrently. The total effective sentence was therefore 2 years' immediate imprisonment. A parole eligibility order was made. The total effective sentence was backdated to 17 March 2014.
Ultimately, the appellant relied upon one ground of appeal. The ground alleges, in essence, that the trial judge did not adequately direct the jury in relation to evidence of certain uncharged acts led by the State for the purpose of context. The appellant asserts that the inadequate directions occasioned a miscarriage of justice.
The last date for appealing was 9 April 2014. The appellant completed serving his sentences on 16 March 2016. He did not file his appeal notice until 18 July 2018. The appellant's application for an extension of time within which to appeal is supported by his affidavit sworn 11 July 2018. That application, and his application for leave to appeal, were referred to the hearing of the appeal. The listing of the appeal for hearing was delayed because on two occasions the appellant sought and was granted leave to make significant amendments to the grounds of appeal and the written submissions in his appellant's case.
We would grant the appellant an extension of time within which to appeal. Leave to appeal should be granted, the appeal allowed, the judgments of conviction set aside and a new trial ordered.

The facts and circumstances of the offences

The facts and circumstances of the offences, as found by the trial judge in his sentencing remarks, were as follows.
The appellant moved to Perth from Broken Hill in mid‑2003, looking for work. He was then aged about 38 years. The appellant was a friend of the victims' family. The family included the mother, father and three children: a daughter, BT who was then aged 6, and two sons, MT who was then aged 11 and NT who was then aged 8. The family invited the appellant to stay with them in a spare room in their house. The spare room was located on the same floor as each of the children's bedrooms. The parents' bedroom was located on a different floor.
The appellant stayed with the family until he went overseas for work in December 2003. The family again invited the appellant to stay with them when he returned to Australia in July 2004, and he stayed until November 2004.
The appellant was received in the household as a trusted friend. He participated in family life and would take the children on outings and care for them when their parents went out at night or spent weekends away.
The appellant would show the children videos on his laptop. Initially, he showed funny videos that were not sexual in nature. However, on the same or on subsequent occasions, the appellant also showed them pornography. The pornography 'depicted a wide gamut of actual heterosexual and homosexual activity. That is to say, acts of vaginal and oral penetration and mutual masturbation, including depictions of ejaculation'.[6]
[6] ts 216.
Count 1 took place shortly after the appellant came to stay with the victims' family, either on the first occasion in 2003 or on the second occasion in 2004. BT, MT and NT were in the appellant's room, looking at funny videos of cats on his laptop. The appellant then played pornographic material. NT left, apparently disgusted. Within a short time, BT and MT were called by their mother for lunch and that incident came to an end.
Count 2 represented one of a series of occasions when the appellant would take BT from her bedroom to the spare room occupied by the appellant. Once in his room, the appellant would show her pornography. He would then return BT to her bedroom. BT gave evidence that this first occurred 'a few weeks or a week' after count 1.[7]
[7] ts 43.
During the period in which counts 1 and 2 took place, BT was aged 6 or 7.
Count 3 was an occasion where MT and NT were in the appellant's room. The appellant was sitting between the children with his laptop on his lap, and was showing the children funny videos. The appellant then showed the children a pornographic video. He was wearing only a towel at the time.
Count 4 involved MT being alone in his bedroom at night. The appellant entered the room and sat on the edge of the bed. He showed MT pornographic videos. When the prosecution opened its case, the prosecutor said that count 4 occurred in the appellant's room.[8] However, during the trial MT gave evidence that it had occurred in MT's room,[9] and the prosecution closed its case on the basis that count 4 occurred in MT's room.[10]
[8] ts 21.
[9] ts 67 - 68; 226 - 227.
[10] ts 169.
During the period in which counts 3 and 4 took place, MT was aged 11 or 12.
No physical sexual contact was made with the children on any of the occasions. The appellant told the children that it was normal for them to be shown pornography and that their parents knew about it. Their parents did not in fact know that their children were being shown this material.
BT and MT did not inform anyone of the appellant's conduct at the time. In 2009, when BT was aged 12, she told her father what had happened. The Department of Child Protection was made aware, but BT did not want to proceed with a complaint to the police at that time. Later, BT told her mother about it and in 2012 a complaint was made to the police.

The appellant's case at trial

The appellant's case at trial was that none of the offending had occurred. The appellant gave sworn evidence in which he denied having shown any pornographic videos or other material to BT or MT on any occasion. He also denied having acted inappropriately towards the children at any time.

The ground of appeal

The sole remaining ground of appeal alleges that the trial judge misdirected the jury and occasioned a miscarriage of justice in that 'his Honour only instructed the jury that if they found that the complainants' evidence as to uncharged incidents was truthful and accurate, the jury can consider that evidence along with all of the other evidence to decide whether the State had proved the charges beyond reasonable doubt'.

The uncharged acts

BT and MT gave evidence at trial that the appellant had shown them pornographic videos on his laptop on numerous occasions apart from those particularised in the indictment. This evidence was led as context evidence under the common law rather than as propensity or tendency evidence, either pursuant to s 31A of the Evidence Act or at common law.[11]
[11] ts 7.
On 16 November 2012, BT was interviewed by the Child Assessment and Interview Team. The interview was visually recorded and a DVD of the interview was edited by counsel and played at trial.[12] In her interview with the Child Assessment and Interview Team, BT said that the appellant would show her pornography 'basically every night' after the first time it happened.[13] BT said that the appellant would come into her bedroom, wake her and carry her to his room. She would cry because she did not want to go. He would usually sit on the edge of his bed, and she would lie down on her stomach towards the end of the bed or sit with her legs crossed. She recalled 'most of the time, just sitting there and watching it, and he was reassuring [her] that [her] parents knew about it, and [she] had nothing to worry about'.[14] BT said they would watch the pornography 'for a few hours'.[15] Afterwards, he would take her back to her bedroom, either carrying her or walking behind her. In cross-examination, BT confirmed that this happened almost every night.[16]
[12] ts 33, 34, 36.
[13] Police interview 16 November 2012, WAB 161, 197.
[14] Police interview 16 November 2012, WAB 197.
[15] Police interview 16 November 2012, WAB 161.
[16] ts 43.
In MT's evidence at trial, he described a gradual progression from the appellant showing him and his siblings funny videos, then progressively more inappropriate videos, through to pornography.[17] MT said '[the appellant] was always showing myself, my brother and my sister like just funny videos on his laptop … they started out fairly, you know, harmless, innocent seeming, and then slowly over the time that he stayed with us it progressed slowly to more erotic material … to full-on pornography'.[18] By the time of the appellant's second stay with the family, he was only showing the children pornographic videos.[19] Generally, the appellant would show MT and his siblings the videos in the spare room where the appellant was sleeping, but he did on some occasions come into MT's bedroom and show him the videos there.[20]
[17] ts 59 - 61.
[18] ts 58.
[19] ts 59 - 61.
[20] ts 61.
MT gave evidence at trial of a further incident, not particularised in the indictment, that he was able to recall with a high degree of specificity. On this occasion, MT and BT were sitting on the end of the appellant's bed. The appellant was sitting between them with his laptop on his lap. The appellant began showing them 'humorous type videos' and then 'swapped' to pornography.[21] MT said this event occurred at night, sometime between 6.00 pm and 9.00 pm. The appellant was wearing a T‑shirt and underwear.[22]
[21] ts 64.
[22] ts 64.

The prosecutor's opening and closing

In her opening address, the prosecutor told the jury that they would hear evidence about other occasions on which the appellant had shown pornography to the children that were not specified in the indictment. She explained that 'it would be unfair to charge any person with a general allegation that they showed pornography to children' and that 'all the incidents really blend into one another for the complainants and they aren't able to remember every specific time it happened'.[23] However, as explained by the prosecutor, each count in the indictment represented a 'specific incident separate from the others that the complainants can remember for some reason or another'.[24] The prosecutor then said, '[i]n due course, I'll make submissions to you about what you can make of those other general allegations and his Honour will also tell you what use you can make of this evidence at the end of the trial'.[25]
[23] ts 20 - 21.
[24] ts 21.
[25] ts 21.

In her closing address, the prosecutor told the jury that the 'surrounding evidence' would help the jury to assess other 'more important evidence'. The jury need not be 'satisfied beyond reasonable doubt, or, indeed, at all, of anything other than the elements of those charges in the indictment to find [the appellant] guilty of those charges in the indictment'.[26]
[26] Closing addresses ts 166.
The prosecutor referred to MT's evidence about the uncharged incident outlined at [45] above:
[Y]ou don't need to decide beyond reasonable doubt that that occasion happened. It goes into the mix as another part of the evidence, part of the context or the surrounds. Because we heard from both complainants that they weren't the only times that it happened. And his Honour will explain the law in relation to that in more detail, I anticipate.[27]
[27] Closing addresses ts 170.

The trial judge's directions in his summing up

The trial judge identified for the jury, in his summing up, the 'main issue' in the trial, being 'whether [the appellant] showed pornographic material to the complainants'.[28] His Honour reminded the jury that the appellant denied having shown the complainants any pornography.[29] His Honour told the jury that the 'prosecution depends upon your acceptance of the evidence of each of the complainants'.[30] His Honour then said that, in respect of each count, the jury could not find the appellant guilty unless they were 'satisfied beyond reasonable doubt that the evidence of the complainants in relation to that count is truthful and reliable'.[31] His Honour continued, '[p]ut another way, you have to be satisfied beyond reasonable doubt that [the appellant's] denials of the allegations could not be true'.[32]
[28] ts 175.
[29] ts 175.
[30] ts 175.
[31] ts 175.
[32] ts 175.
His Honour instructed the jury to look at each count separately and make a decision on each separately.[33] The jury could not find the appellant guilty of any offence for which he had been charged unless 'direct evidence that he committed that offence satisfies you beyond reasonable doubt that he did so'.[34] The jury were obliged 'to consider the evidence in relation to each charge and determine each charge according to [his Honour's directions about the burden and standard of proof]'.[35]
[33] ts 176.
[34] ts 177.
[35] ts 177.
The trial judge told the jury that they must not 'supplement the evidence on any particular count involving one complainant by looking at the evidence of the other complainant', except in the following way.[36] If the jury were satisfied beyond reasonable doubt that the appellant was guilty of one or more of the counts in the indictment, that conclusion could help the jury in deciding whether the State had proved beyond reasonable doubt the case against him on another count, as it may satisfy the jury that the appellant had 'a tendency to act in that way'.[37] However, if the jury found the appellant guilty of one charge, it could not 'conclude automatically' that he was guilty of another charge.[38]
[36] ts 177.
[37] ts 177.
[38] ts 177.
His Honour then referred to the evidence of the uncharged acts. His Honour noted the evidence of BT, that the appellant showed her pornography every night in the appellant's room, and the evidence of MT, that the appellant frequently showed him pornography in both the appellant's room and MT's room. His Honour explained '[the] State's position' was that this evidence was led to show 'the context of the incidents charged in the indictment, that the offences actually charged were part of an ongoing course of conduct by [the appellant]'.[39] His Honour told the jury that it could only use this evidence if the jury found the complainants' evidence to be truthful and accurate.[40] If the jury did find the evidence to be truthful and accurate, the jury could 'consider that evidence along with all of the other evidence' in deciding whether the State had proved a charge beyond reasonable doubt.[41] His Honour emphasised that the jury's task was to decide, for each count, whether the State had proved beyond reasonable doubt that the appellant committed the act for which he was charged.[42] If the jury did not accept a complainant's evidence as to the uncharged acts as truthful and accurate, that would likely influence their assessment of the complainant's credibility in relation to the counts with which the appellant had been charged.[43]
[39] ts 178.
[40] ts 178.
[41] ts 178.
[42] ts 178.
[43] ts 178.
Approximately half an hour later in the trial judge's directions, his Honour referred again to the evidence of the uncharged acts, specifically the evidence given by MT. His Honour told the jury, 'I'll be giving you a direction as to how you may regard that evidence if you find that it is truthful'.[44]
[44] ts 189.
However, his Honour did not give a further direction to the jury as to how they were to consider the evidence of the uncharged acts. Neither the prosecutor nor defence counsel raised his Honour's omission with him.

Counsel for the appellant's submissions

Counsel for the appellant submitted that the trial judge did not direct the jury as to 'the permissible or non‑permissible uses of contextual evidence'.[45] Counsel referred to his Honour's statement to the jury, which we have reproduced at [53] above, and argued that his Honour 'realised the need for' a direction as to how the jury were to regard the evidence of the uncharged acts. However, his Honour did not proceed to do as he intended.
[45] Appeal ts 35.
Counsel argued that his Honour failed to give adequate directions as to how the jury could and could not use the evidence of the uncharged acts, and that this failure occasioned a miscarriage of justice.
Counsel contended that the jury may have reasoned impermissibly that the evidence of the uncharged acts revealed that the appellant had a sexual interest in showing pornographic material to children under the age of 13.[46]
[46] Appeal ts 44.
Counsel submitted that if the appeal was allowed and the judgments of conviction were set aside, then judgments of acquittal should be entered and a new trial should not be ordered. Counsel noted that the appellant had already served the whole of the sentences imposed by the trial judge and argued that it would be unjust to make him stand trial again.

Counsel for the State's submissions

Counsel for the State submitted that the jury were properly directed that the evidence concerning the uncharged acts was led to show the context of the offences charged in the indictment and that the appellant's offending was part of a continuing course of conduct. The jury were not told that they could use the evidence of the uncharged acts as evidence that the appellant had a tendency to act in a particular way, which was 'in direct contrast to what they had been told about the charges on the indictment'.[47] The jury were reminded repeatedly that, even if they were to accept the evidence of the uncharged acts, their task was to decide whether the State had proved beyond reasonable doubt the charged offences.
[47] WAB 255.
Counsel argued that the trial judge's directions were appropriate and without error. Throughout the trial, there was a clear distinction between the treatment of the evidence of the charged offences, on the one hand, and the treatment of the evidence of the uncharged acts, on the other. This distinction was made clear in the prosecutor's opening and closing addresses and in his Honour's directions.
Counsel submitted that there was no 'real risk' of the jury improperly reasoning that the evidence of the uncharged acts established a sexual interest of any kind.
Counsel argued that the appellant placed undue emphasis on his Honour's statement, reproduced at [53] above, that he would give a further direction as to how the jury may regard MT's evidence of uncharged acts, and his subsequent failure to do so. According to counsel, adequate directions had already been given by his Honour.

The merits of the appeal

The critical issues raised by the ground of appeal are these:
(a)whether the trial judge was bound to direct the jury as to the manner in which the jury could and could not use the evidence of the uncharged acts in deciding whether the State had proved beyond reasonable doubt that the appellant was guilty of any of the charged offences; and
(b)if so, whether his Honour gave adequate directions on the matter.
At trial, the evidence of the uncharged acts adduced by the prosecutor comprised evidence of other occasions on which the appellant had allegedly shown pornography to the children that were not the subject of any of the counts in the indictment.
The prosecutor explained in her opening address that, from the complainants' perspective, all of the incidents blended into one another, and the complainants were unable to remember every specific time the appellant had shown them pornography. The prosecutor said the trial judge would inform the jury at the end of the trial what use the jury could make of the evidence of the uncharged acts.
The prosecutor told the jury in her closing address that the evidence of the uncharged acts and other surrounding evidence would assist the jury in assessing other 'more important evidence'. The prosecutor said that MT's evidence about a particular uncharged act 'goes into the mix as … part of the context or the surrounds'.[48] The prosecutor added she anticipated that his Honour would explain the law in relation to the evidence of the uncharged acts.
[48] ts 170.
The evidence of the uncharged acts was not admitted or sought to be relied upon by the State as propensity or tendency evidence, either pursuant to s 31A of the Evidence Act or at common law.
Subject to the trial judge's discretionary power to exclude evidence on the ground that its probative value is outweighed by its prejudicial effect, evidence (including evidence of criminal or disreputable conduct by the accused) may be given at criminal trial if the evidence is relevant in placing the evidence as to the facts and circumstances of a charged offence into their true context as part of the essential background against which the complainant's evidence and any evidence of the accused must be evaluated. See B v The Queen;[49] R v AH.[50]
[49] B v The Queen [1992] HCA 68; (1992) 175 CLR 599, 602 - 603 (Mason CJ), 610 (Deane J).
[50] R v AH (1997) 42 NSWLR 702, 708 (Ireland J; Hunt CJ at CL and Levine J agreeing).
However, as King CJ (Mullighan J agreeing) observed in R v Dolan:[51]
In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is encumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put.
See also Auons v The Queen.[52]
[51] R v Dolan (1992) 58 SASR 501, 503.
[52] Auons v The Queen [2010] VSCA 223 [63] (Bongiorno JA; Buchanan JA & Habersberger AJA agreeing).
In Johnson v The Queen,[53] Kiefel CJ, Bell, Gageler, Nettle & Gordon JJ said:
There is seldom as much risk of a jury reasoning improperly from uncharged act context evidence than reasoning improperly from charged act evidence; especially where … the jury is carefully directed as to the limited purpose for which the uncharged act evidence is adduced and that the jury must not find the accused guilty of a charged act unless satisfied beyond reasonable doubt, on the evidence relating to that charge, that the accused is guilty of that charge. (emphasis added)
[53] Johnson v The Queen [2018] HCA 48; (2018) 92 ALJR 1018 [20].
In that passage, their Honours were assessing the risk that a jury may make improper use of uncharged act evidence in the case of evidence adduced as propensity evidence compared to evidence adduced as context evidence. Their Honours concluded that there will seldom be as much risk of a jury reasoning improperly from uncharged act context evidence compared to uncharged act propensity evidence, particularly where the jury are given a direction of the kind mandated by King CJ in Dolan (503) and the jury are directed that they must not find the accused guilty of a charged act unless satisfied beyond reasonable doubt, on the evidence relating to that charge, that the accused is guilty of that charge.
In the present case, the trial judge was bound to direct the jury that the evidence of the uncharged acts could be used by the jury solely for the purpose of understanding:
(a)the context or the surrounding circumstances in which each charged offence allegedly occurred;
(b)why, on the State's case, BT and MT had not made an earlier complaint, namely because the appellant had allegedly told them that it was 'normal' for BT and MT to be shown pornography and that their parents knew about it; and
(c)why, on the State's case, BT and MT may have had difficulty in recalling specific details of some of the alleged incidents, namely because, as the prosecutor put it in her opening address, 'all the incidents really blend into one another for the complainants'.[54]
See, generally, R v Grech;[55] Eastough v The Queen.[56]
[54] ts 21.
[55] R v Grech [1997] 2 VR 609, 614 (Callaway JA; Phillips CJ & Smith AJA agreeing).
[56] Eastough v The Queen (Unreported, CCA, SCt of WA, Library No 980108, 12 March 1998) (Kennedy J at 8; Steytler J relevantly agreeing), (Pidgeon J at 24 - 25).
His Honour was also bound to direct the jury that:
(a)the jury must not reason, on the basis of the evidence of the uncharged acts, that the appellant was the kind of person who was likely to have committed the charged offences; and
(b)the jury must not take the evidence of the uncharged acts into account in deciding whether the State had proved beyond reasonable doubt that the appellant had committed any of the specific offences charged in the indictment.
It is true that the trial judge told the jury that:
(a)the jury could not find the appellant guilty of a count unless they were 'satisfied beyond reasonable doubt that the evidence of the complainants in relation to that count is truthful and reliable';[57]
(b)the jury could not find the appellant guilty of any count unless 'direct evidence that he committed that offence satisfies you beyond reasonable doubt that he did so';[58] and
(c)'[the] State's position' was that the evidence of the uncharged acts was led to show 'the context of the incidents charged in the indictment, that the offences actually charged were part of an ongoing course of conduct by [the appellant]'.[59]
[57] ts 175.
[58] ts 177.
[59] ts 178.
However, his Honour failed to direct the jury that the evidence of the uncharged acts could be used by the jury solely for the purposes we have specified at [72] above. His Honour's statement to the jury as to '[the] State's position' in relation to that evidence was not enough. It was necessary for his Honour to give a direction to the jury, with the authority of his office, which encompassed the matters set out at [72] above.
Also, his Honour failed to direct the jury, in the manner we have specified at [73] above, as to the uses to which the evidence of the uncharged acts must not be put.
Further, the trial judge directed the jury, erroneously, that if the jury found the complainants' evidence about the uncharged acts to be truthful and accurate, the jury could 'consider that evidence along with all of the other evidence' in deciding whether the State had proved a charge beyond reasonable doubt.[60] That direction would have conveyed to the jury, in effect, that the evidence of the uncharged acts could be taken into account by the jury (if the jury were satisfied that the evidence was truthful and accurate) in deciding whether the State had proved beyond reasonable doubt that the appellant had committed any of the charged offences. As we have mentioned, the evidence of the uncharged acts was adduced to show the context of the charged offences and that the appellant's offending was part of a continuing course of conduct. The evidence was not admitted or sought to be relied upon by the State as propensity or tendency evidence.
[60] ts 178.
Finally, we note for completeness that, in our opinion, there was no reasonable possibility that the jury may have reasoned impermissibly that the evidence of the uncharged acts revealed that the appellant had a sexual interest in showing pornographic material to children under the age of 13. Counsel for the appellant's submission to that effect should not be accepted. At trial, neither his Honour nor the prosecutor suggested that the appellant might have had a sexual interest of that kind.
In the circumstances, the directions which the trial judge gave to the jury in relation to the evidence of the uncharged acts were unsatisfactory. A miscarriage of justice occurred. The ground of appeal has been made out.

Should an extension of time within which to appeal be granted?

In Bardsley v The Queen,[61] Wheeler J considered what is required to demonstrate that a miscarriage of justice will occur if an extension of time within which to appeal against conviction is not granted. Her Honour concluded [113] - [114]:
[I]f all that were required to demonstrate a miscarriage of justice were that there should be a ground which would have succeeded in a regularly instituted appeal, one wonders what purpose the statutory limit and the existence of a discretion would serve. In practical terms, any person with a meritorious ground of appeal would succeed, whenever the appeal was instituted. A person without such a ground might formally be refused leave, rather than having their appeal dismissed, if attempting to appeal out of time, but there would be no practical consequence ever flowing from a failure to appeal within time.
It is my view that both principle and authority in this State suggest that the Court may require more to be demonstrated than that an appeal ground will be successful, before time is extended.
[61] Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 388.
In Wimbridge v The State of Western Australia,[62] Wheeler JA (Miller JA agreeing) noted that in Bardsley her Honour did not attempt to define what 'more' should be shown in order to establish a proper basis for an extension of time [22]. Her Honour elaborated [22]:
I do not think it is possible to do so exhaustively. Factors such as the offence in respect of which the appellant wishes to appeal (for example, whether it is [sic] has resulted in a very lengthy term of imprisonment, or has other serious consequences) and the prejudice (or lack thereof) to the State occasioned by the delay may be matters to be considered, as well as the length of and reasons for delay, and the strength of the appellant's case.
See also Buss JA's observations in Wimbridge [42] - [49] as to the applicable principles governing an application for an extension of time to appeal against conviction.
[62] Wimbridge v The State of Western Australia [2009] WASCA 196.
In the present case, the appellant has failed adequately to explain a significant part of his very substantial delay in filing his appeal notice. However, despite that fact and despite the strong public interest in certainty and finality in the exercise of the criminal jurisdiction, we are persuaded on balance that, for the following reasons, an extension of time should be granted.
First, the appellant has been convicted of four very serious offences, namely four counts of indecent dealing with a child under 13 years, contrary to s 320(4) read with s 319(3)(c) of the Code. The seriousness of the appellant's overall offending is reflected in his total effective sentence of 2 years' immediate imprisonment.
Secondly, as a result of the offences, the appellant became a 'reportable offender', as defined in s 6 of the Community Protection (Offender Reporting) Act 2004 (WA). Consequently, the appellant is obliged to report in accordance with the provisions of that Act. Subject to the Act, the reporting obligations are ongoing for 15 years (see s 46 of the Act) and are reasonably onerous.

Thirdly, a miscarriage of justice occurred at the appellant's trial. The ground of appeal has been made out.
Fourthly, counsel for the State did not submit that if an extension of time and leave to appeal were to be granted, the appeal allowed, the judgments of conviction set aside and a new trial ordered, the State would suffer any specific or particular prejudice in the prosecution of the new trial.
Fifthly, although the alleged offences occurred between 1 May 2003 and 17 November 2004, when MT was aged about 11 and BT was aged about 6, the trial occurred in 2014, when MT was aged 22 and BT was aged 17. It is unlikely that MT's and BT's recollection of relevant events will have diminished materially between 2014 and the time when a new trial occurs.
Sixthly, in the circumstances, the factors militating in favour of granting an extension of time substantially outweigh the factors militating against the granting of an extension of time. The factors militating in favour of granting an extension demonstrate, in combination, that a miscarriage of justice will occur if an extension is not granted.
In our opinion, the appellant should be granted an extension of time within which to appeal, leave to appeal should be granted, the appeal allowed and the judgments of conviction set aside.

Should this court enter judgments of acquittal or order a new trial?

We turn to consider whether this court should enter judgments of acquittal or order a new trial.
Section 30(5) of the Criminal Appeals Act2004 (WA) applies in the case of an appeal against a conviction by an offender. It reads, relevantly:
If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must ‑
(a)order a trial or a new trial; or
(b)enter a judgment of acquittal of offence A; or
(c)if ‑
(i)the offender could have been found guilty of some other offence (offence B) instead of offence A; and
(ii)the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A.
In Director of Public Prosecutions (Nauru) v Fowler,[63] Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ noted that the power of an appellate court to grant a new trial is discretionary in character. Where an appellate court quashes a judgment of conviction it must decide whether it is in the interests of justice to order a new trial. Two broad issues arise for consideration in making that decision. First, the court must assess whether the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction. If it was not, a new trial should not be ordered because it would give the prosecution an opportunity to supplement a defective case. Secondly, if the court determines that the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction, the court must take into account 'any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused'.
[63] Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, 630.
In King v The Queen,[64] Dawson J reiterated that the discretion to order a new trial should not be exercised 'when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective'. His Honour noted, in particular, that 'the Crown should not be given an opportunity to make a new case which was not made at the first trial: R v Wilkes ((1948) 77 CLR 511, at p 518)'. See, to similar effect, the observations of McHugh J in Jiminez v The Queen,[65] where his Honour held that a new trial should not be ordered because 'a second trial would allow the Crown to make a case different from that which it put to the jury at the first trial'. See also Parker v The Queen.[66]
[64] King v The Queen [1986] HCA 59; (1986) 161 CLR 423, 433.
[65] Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, 590.
[66] Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494, 520 (Dawson, Toohey & McHugh JJ).
In R v Taufahema,[67] Gummow, Hayne, Heydon and Crennan JJ cited, with apparent approval, the observations of Gleeson CJ (Finlay J & Slattery AJ agreeing) in Anderson v The Queen[68] that:
(a)there is a public interest in the due prosecution and conviction of offenders; and
(b)it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a jury.
[67] R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [49], [51].
[68] Anderson v The Queen (1991) 53 A Crim R 421, 453.
In Taufahema, Gleeson CJ and Callinan J (who with Kirby J dissented in the result) said that the references by Dixon J in R v Wilkes,[69] and by Dawson J in King,[70] to 'a new case' must be 'to the particulars of the charge, and to the nature of the evidence that will be adduced in support of it, not to the elements of the offence'.[71]
[69] R v Wilkes [1948] HCA 22; (1948) 77 CLR 511, 518.
[70] King (433).
[71] Taufahema [35] ‑ [36].
Gleeson CJ and Callinan J also said in Taufahema that the general rule that 'litigants are bound by the conduct of their counsel, a rule essential to the adversarial system, applies with at least as much force to the prosecution as to the defence'. [72] Their Honours explained:[73]
The considerations identified in Crampton v The Queen ((2000) 206 CLR 161 at 172 ‑ 173 [15] ‑ [20]) as reasons for the rule confining the circumstances in which a new point may be taken in this Court on a criminal appeal by an accused person are relevant in this context also. In particular, the adversarial procedure of criminal justice, which is bound up with notions of judicial independence and impartiality, and according to which the issues at trial are chosen and defined by the parties and their counsel, is at the heart of the matter. It is the executive branch of government that decides whether to prosecute, and what charges to lay. A trial is fought as a contest between the executive government and a citizen. The judge presides neutrally over that contest. Counsel for the respective parties define the issues, decide what witnesses will be called and what questions will be asked, and decide what arguments will be pursued and what will be abandoned.
[72] Taufahema [37].
[73] Taufahema [37].
Gummow, Hayne, Heydon and Crennan JJ, who constituted the majority in Taufahema, reviewed the decisions in Wilkes, King, Jiminez and Parker, and said that these authorities suggest that 'the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial'.[74]
[74] Taufahema [67].
We are satisfied, for the following reasons, that in the present case judgments of acquittal should not be entered and that a new trial should be ordered.
First, there is a public interest in the due prosecution and conviction of offenders and it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a fact-finding tribunal.
Secondly, the miscarriage of justice at the appellant's trial occurred as a result of a legal error or omission in the trial judge's summing up.
Thirdly, the miscarriage of justice is not attributable to the manner in which the prosecutor ran or did not run the State's case.
Fourthly, there is no apparent defect in the State's case. The admissible evidence adduced at the original trial was sufficiently cogent to support convictions on the four counts in question.
Fifthly, a new trial would not allow the State to make a case different from that which it put to the jury at the original trial.
Sixthly, the original trial occupied only three days.
Seventhly, it is unlikely that the appellant's recollection of relevant events will have diminished materially between 2014 and the time when a new trial occurs. In any event, the significant inadequately explained delay which has occurred was wholly of the appellant's making.
Eighthly, the fact that the appellant has already served the whole of the sentences imposed on him is attributable to his own delay in commencing the appeal.
Ninthly, there are no circumstances that render it unjust to the appellant to make him stand trial again.

Conclusion

We would grant the appellant an extension of time within which to appeal. Leave to appeal should be granted, the appeal allowed, the judgments of conviction set aside and a new trial ordered.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KL
Associate to the Honourable Justice Buss
30 DECEMBER 2019