HTN v The State of Western Australia [No 2] - [2022] WASCA 51

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HTN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2022] WASCA 51
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   11 MARCH 2022
DELIVERED          :   13 MAY 2022
FILE NO/S:   CACR 171 of 2021
CACR 172 of 2021

BETWEEN: HTN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   WALLACE DCJ
File Number            :   BUN 79 of 2019

Catchwords:

Criminal law and procedure - Joinder - Where three counts of indecent dealing against two adult accused of engaging in fellatio in the presence of their three infant or toddler children joined with five counts of sexual offending by the co‑accused acting alone committed against one or other of the children - Whether offences formed or were part of a series of offences of the same or a similar character - Whether offences properly joined

Evidence - Where evidence of other conduct by the appellant and co‑accused adduced as 'context evidence' or 'relationship evidence' and not as propensity evidence - Where no objection to the admission of the evidence - Where in summing up the judge identified a number of permissible uses of the other conduct evidence - Whether the other conduct evidence was relevant in any non‑propensity manner - Nature and ambit of propensity reasoning - Whether a miscarriage of justice arose from the admission of the other conduct evidence and the judge's directions as to its use

Words and phrases - 'Context evidence' - 'Propensity evidence' - 'Propensity reasoning' - 'Relationship evidence' - 'Series of offences of the same or a similar character'

Legislation:

Criminal Procedure Act 2004 (WA), sch 1, cl 7(3)(a)

Result:

Leave to appeal against conviction granted
Appeal against conviction allowed
Retrial ordered
Appeal against sentence dismissed

Category: A

Representation:

Counsel:

Appellant	:	D S Hunter & G Horstmann
Respondent	:	L M Fox SC

Solicitors:

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

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

Banks v The State of Western Australia [2018] WASCA 130
Barnes v The Queen [2001] WASCA 86
Beck v The Queen [1984] WAR 127
BGR v The State of Western Australia [2014] WASCA 82
Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 54
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Dann v The State of Western Australia [2021] WASCA 15
DAO v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568
El Haddad v The Queen [2015] NSWCCA 10; (2015) 88 NSWLR 93
GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
HCP v The State of Western Australia [2019] WASCA 38
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338
JAW v The State of Western Australia [2016] WASCA 40
JD v The State of Western Australia [2008] WASCA 147
JEL v The State of Western Australia [2022] WASCA 32
Kabambi v The State of Western Australia [2019] WASCA 44
King v The Queen [2012] HCA 24; (2012) 245 CLR 528
Kitto v The State of Western Australia [2019] WASCA 161
LNN v The State of Western Australia [2021] WASCA 39
Makin v Attorney General [1894] AC 57
Mansell v The State of Western Australia [2009] WASCA 140
Markby v The Queen (1978) 140 CLR 108
Monisse v The State of Western Australia [2021] WASCA 52
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
NTH v The State of Western Australia [2020] WASCA 22
Perry v The Queen (1982) 150 CLR 580
Pfennig v The Queen (1995) 182 CLR 461
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
R v AH (1997) 42 NSWLR 702
R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492
R v Cranston [1988] 1 Qd R 159
R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286
R v Harker [2004] NSWCCA 427
R v Kray [1970] 1 QB 125
Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
Stubley v The State of Western Australia [2010] WASCA 36
Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374
Taylor v The Queen [2020] NSWCCA 355
The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285
The State of Western Australia v Shephard [2018] WASCA 140
Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302

JUDGMENT OF THE COURT:

Introduction

On 6 August 2021, the appellant was convicted of two counts of indecent dealing. On 29 October 2021, the appellant was sentenced to 15 months' immediate imprisonment on each count, to be served concurrently. On 29 November 2021, this court ordered that the appellant be released on bail pending the determination of her appeals.
The appellant now appeals against her conviction and her sentence.
The appellant was tried on an indictment alleging eight offences, three of which were alleged to have been committed by the appellant jointly with her then de facto partner, AC.
The indictment alleged that the appellant and the co‑accused AC engaged in fellatio on a single occasion in the presence of three of their children, referred to as AMC, TDC and TLC. The one incident gave rise to three charges, in corresponding terms, alleging indecent dealing with each of the three children who were, on the State's case, present.
Count 1 alleged that on a date unknown between 28 February 2007 and 28 April 2007, AC and the appellant indecently dealt with AMC, a child under the age of 16 years who they then knew to be their lineal relative, by engaging in fellatio in her presence, contrary to s 329(4) of the Criminal Code (WA) (the Code).
Counts 2 and 3 were in corresponding terms in relation to TDC and TLC respectively.
Counts 4 ‑ 8 on the indictment alleged offences only against AC. They alleged that AC:
(1)on a date between 24 December 2009 and 3 February 2010, sexually penetrated AMC by introducing his penis into her mouth (count 4);
(2)on another date between 24 December 2009 and 3 February 2010, indecently dealt with AMC by placing her on his lap and trying to kiss her (count 5);
(3)on a date between 31 December 2008 and 2 January 2010, procured TDC to do an indecent act, namely touching AC's buttocks with TDC's penis (count 6);
(4)on another date between 31 December 2008 and 3 February 2010, sexually penetrated TDC by performing fellatio upon him (count 7); and
(5)on another date between 31 December 2008 and 3 February 2010, procured TDC to do an indecent act, namely to kiss another of the appellant and AC's children, BJC, on the bottom (count 8).
Both the appellant and AC were convicted of counts 1 and 2 and acquitted of count 3. AC was also convicted of counts 5, 6 and 7, and acquitted of counts 4 and 8.
The appellant initially advanced five grounds of appeal against conviction, alleging that:
(1)Counts 1 ‑ 3 were not properly joined on an indictment with counts 4 ‑ 8, so that the judge who determined the appellant's severance application erred in failing to order separate trials.
(2)In failing to order separate trials, the judge erred in finding that any prejudice to the appellant arising from counts 1 ‑ 3 being heard with counts 4 ‑ 8 could be guarded against by appropriate directions.
(3)The trial judge erred in failing to adequately direct the jury that the evidence against AC relating to counts 4 ‑ 8 was not relevant to the case against the appellant.
(4)The trial judge erred in failing to direct the jury that they must not use particular evidence led in relation to counts 4 ‑ 8 that was capable of implying that the appellant was a neglectful mother or complicit in AC's offending to reason that the appellant was guilty of counts 1 ‑ 3.
(5)The verdicts of guilty on counts 1 and 2 are factually inconsistent with the verdict of not guilty on count 3.
At the hearing of the appeal, the appellant was granted leave to add two further grounds, as grounds 1A and 1B:
(1A) Other conduct evidence given by AMC that was said by the trial judge to be relevant to count 1 was irrelevant and highly prejudicial, giving rise to a miscarriage of justice.
(1B)In the circumstances, there was a real risk that the jury may have adopted propensity reasoning, based on AMC's other conduct evidence, in relation to count 1.
For the reasons that follow, we would uphold grounds 1, 1A, 1B and 3, set aside the convictions and order a retrial.
We would have also upheld the appellant's appeal against sentence, as we consider that it was not open to the trial judge to impose an immediate term of imprisonment. However, given that the appellant's convictions will be set aside, it is appropriate to order that the sentence appeal be dismissed.

The State case

Broadly summarised, the State case on counts 1 ‑ 3 was that, on a particular day during the period March to April 2007, AC's mother, NC, walked past the door of a bedroom where the appellant and AC were sleeping while they were staying at NC's house.[1] The door was open. Inside the room, while walking past, NC saw the appellant engaged in fellatio with AC, who was sitting on the edge of the bed with no pants on. While this occurred, each of AMC, TDC and TLC were in the bedroom. The State case relied solely on NC's evidence. None of the children gave any evidence as to counts 1, 2 or 3.[2]
[1] ts 123.
[2] ts 125, 281.
The State case against AC in relation to counts 4 ‑ 8 relied on evidence by way of child witness interviews or pre‑recordings of AMC and TDC, together with three video records of interview of AC conducted by investigating police.

The appellant's case at trial

The appellant did not give or adduce evidence at trial.
The appellant's case at the trial was that the alleged incident the subject of counts 1 ‑ 3 did not happen and that NC's evidence was not honest, accurate or reliable. Defence counsel for the appellant pointed to the significantly different accounts given by NC in her various police statements.[3]
[3] ts 137, 292.
It is not necessary to detail AC's defence case. In essence, he denied that any of the alleged conduct occurred. In support of that case, AC relied on his denials in the course of his police interviews.

The appellant's severance application

On 13 March 2020, almost 18 months before the trial, Lonsdale DCJ heard and determined an application by the appellant for severance of counts 1 ‑ 3 from the balance of the indictment.
In support of that application, the appellant's counsel submitted that counts 1 ‑ 3 had 'no correlation' with counts 4 ‑ 8, given that they alleged very different offending that occurred at a different time.[4] The appellant's counsel accepted that counts 1 ‑ 3 would properly be tried jointly.[5] However, the submission continued, the lack of nexus between counts 1 ‑ 3, on the one hand, and counts 4 ‑ 8, on the other hand, meant that the two groups of charges should be tried separately.[6]
[4] ts 24 - 25.
[5] ts 25, 27.
[6] ts 26 - 27, 30 - 31.
Lonsdale DCJ considered that the two groups of offences formed or were part of a series of offences of the same or a similar character within the meaning of cl 7(3)(a) of sch 1 of the Criminal Procedure Act 2004 (WA) (the CPA).[7] Although the various counts alleged different offences, they all involved indecent or sexual offending against children who were all part of the same family.[8]
[7] ts 31 - 32.
[8] ts 32.
The judge considered that the discretion under s 133(3) of the CPA was enlivened because there was a substantial body of evidence relating solely to AC, which was not admissible against the appellant, leading to the likelihood of some prejudice to the appellant.[9] The judge then had regard to directions that might be given to the jury with a view to reducing or eliminating any such prejudice. Lonsdale DCJ considered that the trial judge would inevitably give the jury a direction that the evidence admissible in the case against AC was not admissible in the case against the appellant. The judge observed that such directions are given in many trials.[10] Lonsdale DCJ saw no reason to go behind the conventional assumption that the jury would understand and apply the trial judge's direction.[11] The judge did not consider that it would be difficult for the jury to follow and apply the direction that the evidence against AC relating to counts 4 ‑ 8 was not admissible in the trial against the appellant.[12]
[9] ts 32.
[10] ts 34.
[11] ts 34 - 35.
[12] ts 35.
Further, Lonsdale DCJ considered that if AC were to be tried separately in relation to counts 4 ‑ 8, the State would still be permitted to lead evidence in relation to counts 4 ‑ 8 in the trial against AC on count 3, as relationship and/or propensity evidence, with the result that the jury would be apprised of that evidence even if the two groups of counts were tried separately.[13]
[13] ts 35.
For those reasons, Lonsdale DCJ refused the severance application.

The trial judge's summing up

In the course of the summing up, the trial judge told the jury, on several occasions, that they could not convict either accused on counts 1 ‑ 3 unless they were satisfied that NC's evidence was truthful, accurate and reliable, and that the same applied in relation to counts 4 ‑ 8 by reference to the evidence of AMC and TDC.[14]
[14] ts 261, 270, 276.
The judge gave the jury various directions concerning AC's electronically recorded interviews with police.[15]
[15] ts 268 - 269.
At the conclusion of those directions, the judge said as follows:[16]
Now, I've just directed you that what [AC] said in his police interviews is part of the evidence you are to consider in this case in deciding whether or not the State has proved the charges it has presented against him beyond reasonable doubt. However, as I told you during the trial, the statements made by [AC] in his interviews with police are not admissible evidence against [the appellant]. So you must disregard anything which [AC] said to police in his interviews when deciding if the State has proven the charges against [the appellant] beyond reasonable doubt.
[16] ts 269.

The trial judge's reference to what her Honour had said during the trial related to a direction given by the judge just before AC's first electronic record of interview was played. At that point, the judge directed the jury that AC's electronic record of interview could only be used by the jury in relation to the allegations against him and that what AC said in the interview could not be used in respect of the allegations made against the appellant.[17]
[17] ts 185.
The judge gave a Longman direction in relation to a number of counts on the incident, including counts 1 ‑ 3. In that regard, the judge reiterated that the jury must be satisfied beyond reasonable doubt about the truthfulness, accuracy and reliability of NC's evidence before they could convict on counts 1 ‑ 3.[18] Consequently, the judge directed, the jury was required to scrutinise the evidence with special care, taking into account that the incidents were alleged to have occurred between 11 to 14 years earlier.[19] The judge identified various forensic disadvantages suffered by the appellant. As no complaint is made in relation to this aspect of the direction, it is not necessary to detail it.
[18] ts 270.
[19] ts 270.
The judge gave a detailed direction as to evidence of uncharged acts or other conduct given by each of AMC and TDC.[20] That evidence included AMC's evidence that, on an occasion when she was living at the Halls Head house with her parents, while she was in the lounge room she could see, in a reflection, the appellant and AC in the bathroom. She saw the appellant, in her words, 'mouthing his thing'.[21] The other conduct evidence given by TDC concerned conduct solely of AC.
[20] ts 273 - 276.
[21] ts 273.
The judge directed the jury that the other conduct evidence given by AMC was only relevant to their consideration of the counts relating to her, namely counts 1, 4 and 5, but only if they were satisfied that the evidence was truthful, accurate and reliable, and only if they were satisfied that the accused were aware that AMC could observe what they were doing.[22]
[22] ts 274.
The judge directed the jury that TDC's other conduct evidence was relevant only to counts 6, 7, and 8 against AC and was not relevant and could not be used by the jury in their deliberations in relation to counts 1 ‑ 3 or as against the appellant.[23]
[23] ts 274.
The judge told the jury that this evidence was relevant background as to the relationship between AC, the appellant and AMC.[24] That was said to be context in which the alleged offences are said to have occurred and that 'it makes their accounts more intelligible'.[25]
[24] ts 274.
[25] ts 274 - 275.
The judge gave further detailed directions about this, as follows:[26]
For example, it may provide a helpful context, or even necessary for an understanding of the narrative. It may explain a statement or event or conduct that would otherwise appear curious or unlikely. It may cut down or reinforce the plausibility of something a witness has said. It may assist you to use your common sense and experience of life to evaluate the evidence relevant to a particular event involving [AMC] or [TDC].
The State also says that the other conduct evidence shows that the offences alleged against [AMC] and [TDC] didn't happen in a vacuum or out of the blue, and that they were not isolated incidents. It's also something you're able to take into account in determining whether you consider the evidence of [AMC] and [TDC] to be honest, accurate and reliable. For example, if a complainant gives evidence that certain behaviour happened repeatedly over time, it may be relevant to your assessment of their credibility and their ability to recount details of a specific event.
That is, it may be more difficult to recall a specific incident, if such incidents were happening repeatedly over time. It may also explain any delay or failure to complain. Now, whether you use the other conduct evidence in the ways that I've just described, and if so, to what extent, are matters entirely for you. The ways I have described are the only ways in which you can use the other conduct evidence.
[26] ts 275.

The judge then directed the jury as to how they must not use the other conduct evidence:[27]
Having said how you may use a finding based on the other conduct evidence, I now need to direct you on how you must not use that evidence.
The other conduct evidence cannot, in itself, prove any of the offences set out in the indictment. You cannot use the other conduct evidence in substitution, in any way, for the direct evidence of the incidents charged in relation to the offences set out on the indictment. Nor does it fill any gaps or make any other evidence more reliable. Any finding you make in relation to the other conduct evidence cannot and must not lead automatically to a finding of guilt of any of the offences set out in the indictment.
If you find that [AC] or [the appellant] did the other conduct, you must not reason that they must therefore have committed one or more of the offences set out on the indictment. It doesn't follow that, because a person has on a previous occasion committed an act, that they did the same or a similar act on another occasion, or that they are the type of person likely to have committed these kinds of offences.
The ultimate question for you to decide, members of the jury, is whether, having regard to the whole of the evidence, the State has proved beyond reasonable doubt that the accused committed the acts constituting the offences against [AMC] and/or [TDC], as set out on the indictment. You mustn't convict either accused of any of the offences set out in the indictment unless the State satisfies you beyond reasonable doubt that they committed the specific acts alleged to comprise that particular offence. (emphasis added)
[27] ts 275 - 276.

Among other things, the judge thus said that if the jury found that AC or the appellant did the other conduct, they must not reason that the appellant therefore must have committed one or more of the offences.[28]
[28] ts 275.
The judge then gave the following direction as to the need to consider each charge separately, and to do so as against each of the accused:[29]
Now, [AC], as you know, is standing trial on eight separate charges and [the appellant] is standing trial on three separate charges. We could have had 11 separate trials before different juries. We don't have trials in that way because it would not be fair to the accused and it wouldn't be fair to the witnesses for evidence to be taken on multiple occasions.
However, it is important for you to remember that there are eight separate charges against [AC] and three separate charges against [the appellant]. You must look at each charge separately and make a decision on each one separately. When you're looking at one charge, consider only the evidence that's relevant to that particular charge. You must not allow a verdict that you arrive at on one of the charges to lead you automatically to a verdict on another charge. It's not a case of one in, all in. Your verdicts do not have to be the same on each charge.
If you find either of the accused is guilty of one charge, it doesn't automatically follow that they're guilty of the other charges. If you find either of the accused not guilty of one charge, it doesn't automatically follow that they're not guilty of the other charges. Having considered all of the evidence, you may find the accused guilty of all charges. You may find them not guilty of all charges. Or you may find them guilty of one or more charges and not guilty of other charges. All possible permutations are open to you. These are matters for you to determine on the evidence that's relevant in respect of each charge.
[29] ts 276 - 277.

At that stage of the direction, the judge did not in terms identify the evidence relevant to each particular charge. However, as will be seen, the judge effectively did so later in the direction. See, as to counts 1 ‑ 3, ts 281 ‑ 284, and as to the remaining counts, see ts 284 ‑ 288.
The judge identified four elements of counts 1 ‑ 3, as well as count 5, which was in the same terms. The elements were:
(1)It was the accused and not someone else who did the acts constituting the offence.
(2)The accused dealt with the complainant the subject of the charge by the specific act alleged in that charge.
(3)The dealing was indecent.
(4)The complainant was known by the accused to be a lineal relative.
The judge told the jury that the question of identity was not in issue.
As to the second element, the judge told the jury that while dealing with a child encompassed touching them, it was not so limited. It also encompassed acting towards a child or treating a child in a particular way.[30] The judge identified the act said to have been committed by each accused as being the engaging in fellatio in the presence of, in respect of count 1, AMC, in respect of count 2, TDC, and in respect of count 3, TLC.[31]
[30] ts 280 - 281.
[31] ts 281.
The judge reiterated to the jury that the State relied on NC's evidence in relation to counts 1 ‑ 3 and summarised that evidence.[32] The judge also summarised the defence cases, each of which involved the denial of the allegations. The judge referred to AC's denials in his electronic record of interview.
[32] ts 281 - 282.
As to indecency, the judge told the jury that a touching of a child which was sexual and contrary to the ordinary standards of respectable people could be indecent, but that a reference to indecent dealing also included committing an indecent act in the presence of a child. The judge told the jury that, as to counts 1 ‑ 3, the jury would need to make a finding of fact as to whether the accused performed fellatio in front of the three complainants, saying that an act done knowingly in the presence of a child which is sexual in nature and which contravenes a right‑thinking person's standards can be indecent. The judge told the jury that it was for them to determine the standards prevailing in the community in deciding whether the State had satisfied them beyond reasonable doubt that the acts alleged in this case were indecent. The judge observed that it appeared not to be an issue in this trial that if they were satisfied beyond reasonable doubt that the relevant acts occurred that they were indecent, but ultimately it was a matter for the jury to decide.[33] The judge observed that there was no issue that the complainants were known by both accused to be their lineal relatives.[34]
[33] ts 283.
[34] ts 283.
In directing the jury as to the circumstance of aggravation, the judge observed that there was no issue that the complainants were all under the age of 16 years at the relevant time. The judge referred to the birth certificates of AMC and TDC, showing that at the time of counts 1 ‑ 3, AMC was 4 years and TDC was 2 years old. The judge referred to other evidence that TLC was born on 30 June 2006 which meant that at the time count 3 was alleged to have occurred she was between 8 and 11 months old.[35]
[35] ts 284.
In turning to counts 4 and 7, the judge reminded the jury that they were allegations solely against AC.[36] The judge made the same observation in relation to counts 6 and 8.[37]
[36] ts 284.
[37] ts 286.
The judge summarised the competing cases.[38] In summarising the State case:[39]
(1)The judge referred to the other conduct evidence, saying that the State relies on it as contextual evidence providing background to the relationship between the (two) accused and AMC and the relationship between AC and TDC. The evidence was said to show that the counts on the indictment were not isolated incidents or things that happened out of the blue, but, rather, were behaviours that were normalised for the complainant over time, which may explain why they had difficulty recalling specific incidents.
(2)The judge said the State submits that NC was a forthright and honest witness whose evidence they should accept.
[38] ts 288 - 293.
[39] ts 289.
Neither counsel raised any objection to any aspect of the judge's directions to the jury.[40]
[40] ts 294 - 295.

Grounds of appeal

In her appellant's case, the appellant advanced five grounds of appeal, in the following terms:

GROUNDS OF APPEAL

Ground 1
The Learned Judge erred in finding counts 1 to 3 of the indictment form or are a part of a series of offences of the same or a similar character as counts 4 to 8, and thereby erred in failing to order separate trials.
Particulars:
(a)Counts 1 to 3 concern a single act of fellatio between the appellant and the coaccused occurring on one occasion in the bedroom of the co-accused's mother's Forrestfield home in the presence of three of their children AMC, TDC, and TLC between 28 February 2007 and 28 April 2007.
(b)Counts 4 to 8 concern the co-accused only.
(c)Counts 4 to 8 concern the co-accused committing sexual offences against two of he and the appellant's children AMC, and TDC, and procuring TDC to do an indecent act on both the co-accused and their youngest child BJC.

Ground 2
The Learned Judge erred in finding any prejudice to the appellant involved in counts 1 to 3, and counts 4 to 8 of the Indictment being heard together could be guarded against by appropriate directions, and thereby erred in failing to order separate trials.
Particulars:
(a)The evidence presented at trial in regard to counts 4 to 8 was only relevant to the co-accused, and was not admissible against the appellant.
(b)The evidence presented at trial in regard to counts 4 to 8 not admissible against the appellant comprised two video recorded child witness interviews of AMC, a video recorded child witness interview of TDC, the pre-recorded evidence of AMC and TDC, three video recorded interviews between the co-accused and police, and photographs and plans of a residential property at 4 Mahogany Drive Halls Head.
(c)The only evidence admissible against the appellant presented at trial was the evidence of the co-accused's mother Noelene Mary Clark.
(d)As a consequence of counts 1 to 3 not being tried separately to counts 4 to 8, inadmissible evidence not relevant to the state's case against the appellant about the appellant's and co-accused's children being removed from their care by the Department of Child Protection was presented at trial.
(e)The significant amount of evidence presented at trial relevant to counts 4 to 8 not admissible against the appellant, combined with the association of the appellant with the co-accused in regard to sexual offences allegedly committed against their children by the co-accused could not be guarded against by appropriate direction.

Ground 3
The Learned Trial Judge erred in failing to sufficiently direct the jury that the evidence presented at trial against the co-accused in regard to counts 4 to 8 was not relevant to the appellant and should be entirely disregarded when considering the State's case against the appellant.
Ground 4
The Learned Trial Judge erred in failing to direct the jury it would be impermissible to use evidence not admissible against the Appellant implying the Appellant was a neglectful mother and/or complicit in the co-accused's offending, to reason the Appellant was guilty of Counts 1 to 3 in the Indictment.
Ground 5
The majority guilty verdicts on counts 1 and 2 of the Indictment are factually inconsistent and incompatible with the unanimous not guilty verdict on count 3, thereby occasioning a miscarriage of justice.
Particulars:
(a)The critical issue in regard to counts 1 to 3 was whether the appellant performed fellatio on the co-accused in the presence of three of their children AMC, TDC and TLC.
(b)The only evidence the State relied on to prove counts 1 to 3 was the evidence the co-accused's mother Noelene Mary Clark.
(c)The co-accused's mother's evidence was that when walking past the appellant and co-accused's bedroom she observed the appellant performing fellatio on the co-accused while AMC, TDC and TLC were present in the bedroom.
(d)Verdicts of guilty on counts 1 and 2 meant the jury was satisfied beyond reasonable doubt the appellant performed fellatio on the co-accused in the presence of AMC and TDC.

The verdict of not guilty on count 3 meant the jury was not satisfied beyond reasonable doubt the appellant performed fellatio on the co‑accused in the presence of TLC.

On 3 March 2022, the appellant applied for leave to add two further grounds of appeal. The proposed additional grounds may be summarised as follows:
(1)Ground 1A: the other conduct evidence of AMC in relation to count 1 was not probative and was highly prejudicial, giving rise to a miscarriage of justice.
(2)Ground 1B: there was a real risk that the jury may have adopted propensity reasoning in relation to count 1 derived from, or based on, the other conduct evidence of AMC, thereby occasioning a miscarriage of justice.
At the hearing of the appeal on 11 March 2022, the court granted leave to the appellant to amend her grounds of appeal in this manner.
We will begin with grounds 1 and 2, which deal with the questions of joinder and severance. More specifically, those grounds challenge the joinder of counts 1 ‑ 3 with counts 4 ‑ 8, and Lonsdale DCJ's decision refusing to sever the indictment under s 133 of the CPA. We will first set out the relevant statutory provisions.

Statutory provisions

Joinder

Section 85(2)(b) of the CPA provides that an indictment must comply with sch 1 div 2. Schedule 1 div 2 sets out the rules relating to the content of prosecution notices and indictments. Clause 2(3) provides that a prosecution notice or indictment must contain one charge only unless cl 7 or another written law permits otherwise.
Clause 7 provides:
…
(3)A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences -
(a)form or are a part of a series of offences of the same or a similar character; or
(b)are alleged to arise substantially out of the same or closely related acts or omissions; or
(c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,
and may do so without alleging a connection between the offences.

Clause 9 relevantly provides:
(1)If one prosecution notice or indictment contains 2 or more charges the charges must be tried together unless a court orders otherwise under this Act.

Severance

Section 133 of the CPA provides, relevantly, as follows:
…
(3)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order ‑
(a)that the accused be tried separately on one or more of the charges; and
(b)the prosecutor to tell the court the order in which the charges will be tried.
(4)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order ‑
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried.
(5)In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court ‑
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if ‑
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.

Ground 1: were all counts properly joined?

Appellant's submissions

The appellant submits that the judge erred in finding that the offences on the indictment all formed or were part of a series of offences of the same or a similar character within the meaning of cl 7(3)(a) of the CPA. She submits that the factual circumstances, time and location of counts 1 ‑ 3 are unconnected with those features of the offences in counts 4 ‑ 8.[41] She also points to the different nature of the offending the subject of the two groups of offences.[42] Further, she submits that the evidence relied on to prove counts 4 ‑ 8 was not admissible against her.[43]

Respondent's submissions

[41] Appellant's submissions [20].

[42] Appellant's submissions [21].

[43] Appellant's submissions [20].

The respondent submits that the critical question is whether all the counts as against AC were properly joined, since, if they were, it was proper for the State to charge both the appellant and AC with counts 1 ‑ 3, given that it alleged that they committed those offences as joint principals.[44]
[44] Respondent's submissions [6] - [11].
The respondent submits that the inquiry dictated by par (a) of cl 7(3) directs attention to the various offences without regard for who is alleged to be parties to those offences.[45]
[45] Appeal ts 55 - 56.
The respondent submits that the eight offences were all properly joined as against AC because they were all said to have been committed by him, were all sexual offences against one of his children and all occurred within a period of no more than three years.[46]

Legal principles

[46] Respondent's submissions [7]; appeal ts 56.

In order for joinder to be authorised under cl 7(3)(a), the offences must not only be of the same or a similar character; they must form or be part of a series of offences of the same or a similar character.

A sufficient nexus to find the offences form or are part of a series of offences of a similar character is established if the offences are so connected that evidence of one would be admissible on the trial of the other, but the provision is not restricted to such cases.[47] What is required is a sufficient correlation to enable the offences to be described as a 'series' without straining the word beyond the meaning which it is reasonably capable of bearing.[48] The words 'a series of offences of the same or a similar character', while somewhat imprecise, have been said to 'call for the administration of a test in which time, place and other circumstances of the offences as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present'.[49] In Zammit v The State of Western Australia, Steytler P also quoted the observations of Macrossan J that 'courts may find that an appropriately liberal exercise to sever is called for in doubtful cases' and that 'it will be necessary to be cautious in concluding that multiple counts do truly involve a series of the same or similar character'.[50]
[47] Zammit [24] quoting R v Kray [1970] 1 QB 125, 130 - 131.
[48] Mansell v The State of Western Australia [2009] WASCA 140 [26]; JAW v The State of Western Australia [2016] WASCA 40 [84].
[49] Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [28] quoting R v Cranston [1988] 1 Qd R 159, 164.
[50] Zammit [28] quoting R v Cranston (164).
Bearing in mind the existence of the discretion under s 133 of the CPA, provisions as to joinder, such as cl 7(3), should not be given an unduly restricted meaning.[51]
[51] Zammit [27]; Mansell [26].
In Zammit, Steytler P (with whom Wheeler and Pullin JJA agreed) outlined some illustrative applications of cl 7(3)(a) and its predecessor, s 585(2) of the Code.[52] We adopt his Honour's analysis without repeating it.
[52] Zammit [29] ‑ [33].
Thus, the existence of the relevant nexus for the purposes of cl 7(3)(a) is a question of fact and degree, not lending itself to precise definition.

Disposition

We begin with issues of construction of cl 7(3)(a).
We do not accept the respondent's construction identified in [56] above. The identity of the person(s) alleged to have committed an offence is one of the factual elements and circumstances attending the offence. There is no warrant in the text, context or purpose of cl 7(3) to exclude this feature of the offences as alleged from the evaluation of whether the offences fall within a paragraph of cl 7(3). In our view, in determining whether the respective offences have the character stipulated in par (a) or, for that matter, pars (b) or (c), regard must be had to who is alleged to have committed the offences as well as to the legal and factual elements and circumstances attending those offences.
In the course of argument, a further question of construction of cl 7(3) emerged. The question is whether cl 7(3) applies to the charging of two or more persons with multiple offences in a single indictment only if all of the persons are charged with all of the offences.
Support for this construction may be found in a literal reading of cl 7(3). Relevantly, it provides that an indictment may charge one or more persons with two or more offences if the offences satisfy the condition stipulated in one or more of pars (a), (b) and (c). Reading the alternatives concerning the charging of one person, or more than one person, distributively, the provision may be read in the following manner:
(1)An indictment may charge one person with two or more offences if the offences meet one of the stipulated conditions.
(2)An indictment may charge two or more persons with two or more offences if the offences meet one of the stipulated conditions.
Read literally, in the second of these fields of operation the provision might be taken to be restricted to the charging of multiple persons with the same multiple offences.

However, we do not read cl 7(3)(a) as so limited. To our minds the provision may be read as empowering the inclusion of two or more offences in an indictment, some or all of which are charged against more than one person.
The narrow, literal construction identified in [65] above would have consequences that, in our view, are most unlikely to have been intended. An example may illustrate the point. Suppose that two people were alleged to have jointly engaged in a series of armed robberies, following which one of those persons, acting alone, was alleged to have attempted to destroy evidence or to threaten one or more of the witnesses to the earlier offences. On the construction in [65] above, two trials would be necessary. Either the two accused would have to be separately tried, or the armed robberies would have to be tried separately from the other charge(s). Absent intractable language, we do not think the legislature should be taken to have intended such an obviously inconvenient and inefficient outcome in a set of circumstances that could and would have been readily contemplated by the legislature.
This conclusion seems to us to be reinforced by consideration of the legislative history, which was outlined by Steytler P in Zammit [17] - [21], and the course of authority before the enactment of the CPA. Under s 585(2) in its form at the time of its repeal, it was open to charge multiple accused on an indictment charging multiple offences not all of which were said to have been committed by all of them. This is illustrated by Beck[53] and Barnes,[54] two of the cases referred to by Steytler P in Zammit.
[53] Beck v The Queen [1984] WAR 127.
[54] Barnes v The Queen [2001] WASCA 86.
In preferring the broader construction, we also take into account the precept, referred to in [58], that bearing in mind the existence of the discretion under s 133 of the CPA, provisions as to joinder such as cl 7(3) should not be given an unduly restricted meaning.
Applying our preferred construction identified in [64] above, namely that regard is to be had to the alleged offenders as well as to the nature and circumstances of the offences, we are not persuaded that in the present case the two groups of offences satisfied the test in cl 7(3)(a).
We accept that, at a high level of generality, the offences may be seen to have been of a similar character, in that they all alleged sexual offending by AC against one of his young children, committed at their place of residence on various occasions in a period of no more than three years.
However, to our minds, to so analyse the position is to approach the matter at too high a level of generality.
To us, the offending the subject of counts 1 ‑ 3, alleged to have been committed by both the appellant and AC, is of a fundamentally different character to AC's offences the subject of counts 4 ‑ 8. Counts 4 ‑ 8 alleged that AC, acting alone, offended against the relevant child, either by physically sexually abusing the child (counts 4, 5 and 7) or by procuring the child to do an indecent act (counts 6 and 8). By contrast, counts 1 ‑ 3 involved sexual conduct, evidently consensual, between an adult couple in the presence of their very young children. They did not involve any physical contact with the children and were not alleged to have involved, or been accompanied by, any verbal or other communication with any of the children beyond the commission of the physical act itself by the two accused.
We accept that two adults engaging in sexual conduct in the presence of young children may, in some circumstances, involve an element of grooming or other encouragement of the children towards sexual conduct on the part of the children. However, at trial, there was no evidence and no submission to this effect. Nor was any such submission made on appeal. Absent something to connect the offending in counts 1 ‑ 3 to the other offending the subject of counts 4 ‑ 8, in our view the differences outlined in [74] count decisively against characterisation of the two groups of offences as a series of offences of a similar character.
For these reasons, we do not consider that counts 1 ‑ 3, on one hand, and counts 4 ‑ 8, on the other hand, could properly be said to be a series of offences of a similar character. Consequently, Lonsdale DCJ erred in concluding to the contrary and in not upholding the appellant's application for counts 1 ‑ 3 to be tried separately from the remainder of the counts on the indictment. Ground 1 has been made out.

Ground 2

The upholding of ground 1 makes it unnecessary to determine ground 2.

Grounds 1A and 1B: appellant's submissions

In support of ground 1A, the appellant submits that the other conduct evidence of AMC, relating to the occasion recounted by her when she observed her parents in the bathroom with the appellant 'mouthing [AC's] thing', was not relevant.[55]
[55] Appeal ts 43 - 44.
In support of ground 1B, the appellant submits that the conditioning of the use of the other conduct evidence, by reference to whether the jury were satisfied that the appellant and AC were aware that AMC was observing what they were doing, magnified the risk that the jury would use the other conduct evidence in a manner that involved propensity reasoning.[56]

Grounds 1A and 1B: the use of the other conduct evidence invited by the prosecution and by the respondent

[56] Appeal ts 44 - 45.

At the trial, in the course of opening, the prosecutor referred to the other conduct evidence of AMC as follows:[57]
Now, neither of the accused is charged over this account you'll hear [AMC] describing in her child witness interview. If you were to accept [AMC]'s evidence about that incident and to find that the accused were aware that [AMC] was observing them having sex, then that is evidence, the State says, [that] shows the contextual background or the relationship that the two accused had with [AMC]. (emphasis added)
[57] ts 131 - 132.
As recently observed in JEL v The State of Western Australia,[58] to tell the jury that the evidence provides context or background is unhelpfully general and vague.
[58] JEL v The State of Western Australia [2022] WASCA 32 [219].
In closing address, the prosecutor, in effect, repeated these submissions:[59]
Now, neither accused is charged over this account given by [AMC]. And if you were to accept that evidence and find that they were aware that [AMC] was observing [them] having sex, then it's before you because it may be helpful for you to understand the contextual background, the relationship that the accused had with [AMC] while [AMC] was living with the accused before she went to live with her nana.
So that's the possible use that evidence has for you. There's no charge about it but if you accept that it happened, then it gives you some insight into the relationship or the background of [AMC]'s experiences living with her mother and father. (emphasis added)
[59] ts 237.
It should be noticed, that in both opening and closing address, the prosecutor conditioned the jury's use of the other conduct evidence on a finding that the appellant and AC were aware that AMC was observing them. We will return to this point.
Thus, at trial, the State placed no reliance on the other conduct evidence as propensity evidence. On appeal, the respondent properly adhered to that position. In our view, this sets an important boundary on the bases on which the other conduct evidence may properly be seen to be relevant. In particular, to our minds, given the State's express position that the other conduct evidence was not propensity evidence, it could not use the evidence in a manner that, in substance, involves propensity reasoning.
The respondent invoked what was said by Gleeson CJ in HML[60] in supporting the judge's direction that this evidence could be used to 'explain a statement or an event that would otherwise appear curious or unlikely' and to '…reinforce the plausibility of something that a witness has said'. The respondent submitted that NC's evidence as to count 1 (and, for that matter, counts 2 and 3),[61] viewed in isolation from the other conduct evidence might seem to a jury implausible, but viewed with the other conduct evidence, however, the evidence could be seen by the jury to be less implausible.[62]
[60] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [6].
[61] On appeal, counsel for the respondent submitted that, properly understood, the evidence related equally to counts 2 and 3, but he accepted that at trial the evidence was only relied on in relation to count 1: appeal ts 45.
[62] Appeal ts 47 - 48.
Counsel for the respondent submitted that to so use the evidence was not properly understood as involving propensity reasoning because it did not involve reasoning along the lines that the accused is a particular kind of person who is therefore more likely to commit the charged offences.[63]
[63] Appeal ts 48 - 50.
Resolution of these submissions requires attention to the legal principles as to relevance, propensity evidence and the nature and ambit of propensity reasoning.

Legal principles: relevance, propensity evidence and propensity reasoning

Relevance

In Goldsmith v Sandilands[64] and in HML,[65] Gleeson CJ explained the concept of relevance and its relationship to the rules as to admissibility of evidence. The primary rule of evidence is that the court will receive, and only receive, evidence that is relevant to the issues at the trial. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue at the trial.[66] The general rule that relevant evidence will be received is qualified by other rules of evidence. Reasons for not receiving relevant evidence may relate to its content, or to the form or circumstances in which it is tendered. One such exclusionary rule of evidence is the rule against propensity evidence.
[64] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2].
[65] HML [5].
[66] See also Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 [7]; Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50]; HCP v The State of Western Australia [2019] WASCA 38 [45] ‑ [46], [77].
As already noted, evidence may be relevant directly or indirectly. Evidence is directly relevant if acceptance of the evidence is, in itself, capable of affecting the fact finder's assessment of the probability of the existence of a fact in issue. Evidence may be indirectly relevant in that it assists in the evaluation of other evidence.[67] In HML, in the passage relied on by the respondent, Gleeson CJ observed:[68]
Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative.
[67] HML [6], [512] - [513]; Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610 [12], [41] - [42]; HCP [46], [73].
[68] HML [6].
As we will explain, in our view the distinction between direct relevance and indirect relevance has some significance for the resolution of ground 1A.

Propensity evidence

At common law, evidence is not admissible if the only purpose of its tender is to show that the accused had a propensity or disposition to commit crimes, or crimes of a particular kind, or that he or she was the sort of person likely to commit the crime charged.[69] Such evidence is excluded because, although it is logically relevant, it is too prejudicial.[70] Some of the many reasons for the exclusion were outlined by McHugh J in Pfennig,[71] in a passage cited by Buss JA in Stubley.[72]
[69] Makin v Attorney General [1894] AC 57, 65; Markby v The Queen (1978) 140 CLR 108, 116; Stubley v The State of Western Australia [2010] WASCA 36 [71], [324]. While this court's decision in Stubley was overturned by the High Court (see Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374), nothing in the High Court's decision reduces the authority of the statements of general principle to which we have referred.
[70] Perry v The Queen (1982) 150 CLR 580, 585, 609; Pfennig v The Queen (1995) 182 CLR 461, 512; HML [12]; Stubley [71], [324].
[71] Pfennig (512 ‑ 513).
[72] Stubley [324].
However, such evidence will be admissible if it is relevant in some other way, that is, if it tends to show that the accused is guilty for some other reason than that he or she has committed crimes or has a criminal disposition.[73] As noted in Stubley,[74] the exceptions to this exclusionary rule include what has at times been referred to as 'propensity evidence'. In Pfennig, Mason CJ, Deane and Dawson JJ said:[75]
There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term 'similar fact' evidence is often used in a general but inaccurate sense.
[73] Makin (65); Markby (116); Stubley [71], [324].
[74] Stubley [325].
[75] Pfennig (464 - 465).
In Stubley, Buss JA observed that the term 'propensity evidence' does not appear to have a precise meaning at common law. It includes 'similar fact evidence' and 'relationship evidence'.[76]
[76] Stubley [326].
The term 'similar fact evidence' usually describes evidence which reveals that the accused has, on previous occasions, engaged in conduct similar to that alleged against him or her in the pending criminal proceedings. Normally, similar fact evidence is used to prove issues relating to the conduct and mental state of an accused. Did the accused do a particular thing or did they do it with a particular mental state?[77] The common law required a high threshold to be passed before such evidence could be admitted.[78]
[77] Phillips [46].
[78] Pfennig (481); Phillips [54], [79].
In Western Australia, admission of evidence of this kind is governed by s 31A of the Evidence Act 1906 (WA), which requires that the evidence have significant probative value.
By way of example, in a charge of sexual offences, evidence of uncharged sexual offending against the complainant will, in some cases, be found to have significant probative value. In LNN, this court observed that:[79]
The decision in [R v] Bauer [[2018] HCA 40; (2018) 266 CLR 56] illustrates that, in some circumstances, evidence of uncharged sexual offending against a complainant may be used as propensity or tendency evidence and be admissible as proof of the sexual offences with which the accused is charged, if the evidence has significant probative value. The evidence may have significant probative value on the basis that, taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant, and a willingness to act on it, which assists to eliminate doubts that might otherwise attend the complainant's evidence of the charged acts [Bauer [48] ‑ [49]].

Propensity reasoning

[79] LNN v The State of Western Australia [2021] WASCA 39 [173].

Characterisation of evidence as propensity evidence involves identification of (i) the work the evidence is tendered to do;[80] and (ii) the permissible reasoning processes made available to the jury by the evidence.[81]
[80] Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [23]; The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [22].
[81] R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286 [49], [52].
There is no doubt that to reason that an accused is a particular kind of person and, on that account, is more likely to commit the offence, involves propensity reasoning. In addition to the cases referred to in [91] above, see, for example, Dair v The State of Western Australia;[82] Banks v The State of Western Australia;[83] and Wark v The State of Western Australia.[84]
[82] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [51], [64].
[83] Banks v The State of Western Australia [2018] WASCA 130 [45].
[84] Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365 [479].
However, in our view, propensity reasoning has a broader character and is not restricted to reasoning to the effect that the accused is a particular kind of person who is therefore more likely to commit the offence. Correspondingly, reasoning along the lines that the accused is a particular kind of person who is therefore more likely to commit the offence is not the only mode of reasoning that is excluded by the principles governing propensity evidence, which impose a high threshold for the admission of evidence of this kind under the common law and s 31A. In our view, another integral element of propensity reasoning, against which the law guards by stringent rules of admission, is reasoning along the lines that because the accused engaged in similar conduct on other occasions, it is more likely that the accused acted as charged.
There is substantial authority supporting the proposition that to reason that the accused having done something similar to the charged act on one or more other occasions increases the probability that the accused committed the charged offence is to invoke propensity reasoning.
In a passage cited with approval in Taylor v The Queen[85] by Bell P (as his Honour then was), in Hughes v The Queen Gageler J explained the reasoning invited by tendency or propensity evidence. His Honour posed the question of why evidence of this kind faced a higher threshold of admissibility than other forms of evidence, answering it as follows:[86]
To answer that question, it is necessary to be clear about the problem to which the tendency rule is directed. The problem arises from the cognitive process necessarily involved in using tendency evidence to assess the probability of the existence of a fact in issue. The cognitive process is that mapped out in the statement of the tendency rule itself. Tendency evidence - be it of character or reputation or of conduct other than an occasion in issue in a proceeding - is evidence that is used to prove to the tribunal of fact that a person has or had a tendency to act in a particular way or to have a particular state of mind. The tendency so proved to the tribunal of fact is then used by the tribunal of fact to predict or (to adopt terminology which describes the process of reasoning employed more accurately) to 'postdict' the action or state of mind of the person on the occasion or occasions in issue in the proceeding. Applied to evidence of past conduct, tendency reasoning is no more sophisticated than: he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue. (emphasis added)
[85] Taylor v The Queen [2020] NSWCCA 355 [94].
[86] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [70].
In the context of a case concerning tendency evidence under s 97 of the Evidence Act1995 (NSW), Simpson J (with whom McClellan CJ at CL agreed) said in R v Cittadini:[87]
Proof of a tendency to act in a particular way of itself goes nowhere. Evidence that a person had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to the proceedings, that person acted in a particular way (or had a particular state of mind); that is, to provide the foundation for an inference to that effect.
Put another way, tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind). (emphasis added)
[87] R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492 [22] ‑ [23].

Similarly, in R v Harker,[88] Howie J (with whom Santow JA and Bell J agreed) explained that tendency evidence is adduced as evidence tending to prove the guilt of the accused by inviting the jury to reason that, 'because the accused acted in a particular way on some other occasion or occasions, he or she must have acted in the same way on [the charged] occasion'.
[88] R v Harker [2004] NSWCCA 427 [57].
In R v Ford,[89] these explanations of tendency reasoning were adopted by Campbell JA, with whom Howie and Rothman JJ relevantly agreed.
[89] Ford [39] ‑ [40].
We note that, in DAO v The Queen, Simpson J (Kirby and Schmidt JJ agreeing) doubted Howie J's use of the phrase 'in the same way', pointing out that sameness is not a necessary element and that the degree of similarity will inform the evaluation of the extent of the evidence's probative value.[90] Thus, what Howie J said is better understood as referring to acting in a similar way on the charged occasion. That does not detract from the point for present purposes.
[90] DAO v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568 [181].
For these reasons, in our view, to adduce evidence for the purpose of inviting the jury to reason that the fact that the accused had done something similar to the charged act on one or more other occasions made it more likely that the accused had committed the charged offence is to invoke propensity reasoning and to use the evidence as propensity evidence.

Ground 1A: disposition

In our view, the use of the other conduct evidence invited by the respondent, as set out in [85] above, involves or invites propensity reasoning and consequently was impermissible. As the respondent ultimately accepted,[91] NC's evidence as to count 1 was rendered 'more plausible' by the other conduct evidence only on the basis that the other conduct evidence established that the appellant and AC had done something similar on a different occasion. In that manner, in substance, the respondent invited a use of the other conduct evidence that involved reasoning to the following effect: the accused had done something similar to the charged act on a different occasion, which made it more likely that the accused committed the charged offence. For the reasons in [99] ‑ [106] above, to so use the other conduct evidence involves propensity reasoning.
[91] Appeal ts 48, 49.
This conclusion cannot be avoided, as the respondent sought to do, by attempting to characterise the use of the evidence as (merely) assisting the evaluation of the credibility or reliability of NC's evidence. As we have said, NC's evidence as to count 1 was rendered more plausible only on the basis and to the extent that the other conduct evidence established that the appellant and AC had done something similar on a different occasion, and thus, by implication, were more likely to have engaged in the charged conduct. Reasoning founded on that basis is, in substance, a matter of direct relevance. Its character cannot be altered by framing the position in terms of rendering the account given by NC more plausible.
Properly understood, the use invited by the respondent is not of the kind explained by Gleeson CJ in HML, in the passage set out at [89] above. In speaking of the plausibility of what a witness has said, Gleeson CJ was referring to one or more particular features of the account given by a witness of the circumstances attending the offence, not to the plausibility of the offending itself. That is illustrated by the example given by his Honour, in the passage immediately following the passage we have set out at [89] above:[92]
An example is some evidence given in R v Wickham [Unreported, New South Wales Court of Criminal Appeal, 17 December 1991]. A female complainant in a child sex abuse case gave an account, directly relevant to a charge, of a sexual encounter she had with her father when she was 14 years old. She said that her father entered her bed, and had sexual intercourse with her. After some brief conversation, they both went to sleep. The father denied that any such event occurred. There was other evidence to show a history of similar sexual activity before the occasion in question. In the absence of that evidence, the complainant's account of what otherwise would have been presented as a single, and apparently isolated, act might have been regarded by the jury as difficult to believe. The complainant expressed no surprise when her father came to her bed. She made no protest. She behaved as though this was a common occurrence. She said that, in fact, it was a common occurrence. If she had not been permitted to say that, her evidence could have appeared hard to believe. To have put her evidence forward as though she were describing an isolated incident would have been misleading, and, it might be added, unfair.
[92] HML [6].

In substance, the respondent invites use of the other conduct evidence to reduce the implausibility of the occurrence of the charged offence, not to reduce the implausibility of a factual feature of a witness' account of the offending conduct and its circumstances. In the present case, the respondent's submissions did identify implausibility in some particular features of NC's account, namely that the conduct did not stop when she confronted them and continued to the point where she had to remove the children.[93] Otherwise, it was simply the fact of the commission of the offence which was said to be extraordinary and implausible. The other conduct evidence does not have the specific features of continuing in front of an adult, or any similar feature. Thus, the other conduct evidence does not itself reduce the implausibility arising from the identified feature of NC's account. Rather, the other conduct evidence seeks to overcome the apparent implausibility of NC's account by its appeal to propensity reasoning.
[93] Appeal ts 47.
The distinction drawn in [108] above - between using evidence to make the charged conduct more likely and using evidence only to place other prosecution evidence in context - is supported by this court's recent decision in LNN v The State of Western Australia. In that case, the dispositive elements of the court's reasoning draw, and mark, the distinction between evidence of uncharged sexual offending adduced as propensity evidence and such evidence adduced as context evidence. The court explained that context evidence is evidence that does not go towards establishing guilt, but is only relevant to evaluation of other prosecution evidence.[94] The court contrasted context evidence with other evidence, including propensity evidence, that goes towards proof of the prosecution case. A real risk of propensity reasoning arose in LNN, the court found, because the judge's direction left it open to the jury to reason that the accused in that case was more likely to have committed the charged offences because of his other uncharged offending.[95]
[94] LNN [175], [177], [192] - [193], [195].
[95] LNN [195].
The same distinction, in substance, has been made in many cases. See, for example, R v AH, where Hodgson JA distinguished between (i) conduct led to place the complainant's evidence as to the charged conduct into its true context to enable its proper evaluation and (ii) evidence led for a purpose, such as to demonstrate a sexual interest in the complainant, that was directly relevant to proving that the charge conduct happened.[96]
[96] R v AH (1997) 42 NSWLR 702, 708, cited with approval in El Haddad v The Queen [2015] NSWCCA 10; (2015) 88 NSWLR 93 [39].
The position in the present case has some analogy to this court's recent decision in JEL v The State of Western Australia,[97] in which the court rejected the distinction advanced by the respondent between (i) using evidence to 'broadly support the complainant's credibility' and (ii) inviting propensity reasoning.
[97] JEL [119] ‑ [120].
For completeness, we would note that, as Dann v The State of Western Australia illustrates,[98] there may be some cases in which other conduct evidence may be used as a circumstance relevant to guilt - and thus bearing upon the probability that the accused committed the charged act - without involving a propensity use.[99]
[98] Dann v The State of Western Australia [2021] WASCA 15.
[99] See LNN [174] and JEL [136] ‑ [137].
For these reasons, in our opinion, the use of the other conduct evidence invited by the respondent was, and is, impermissible because it is, in substance, a propensity use of the evidence.
Counsel for the respondent on appeal did not advance any other permissible use of the other conduct evidence. In our respectful opinion, he was right not to do so. Thus, the evidence was irrelevant.
The respondent did not submit that, even if the evidence was irrelevant, no miscarriage of justice arose from its admission and from the judge's direction that it was relevant to count 1. Again, in our view, the respondent was correct in adopting this position. In our opinion, a miscarriage of justice occurred because the judge directed the jury that the other conduct evidence was relevant to their consideration of count 1 in circumstances when, for the reasons we have explained, it was not relevant to that count. That, in itself, occasioned a miscarriage of justice.[100]
[100] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18]; King v The Queen [2012] HCA 24; (2012) 245 CLR 528 [53]; Kitto v The State of Western Australia [2019] WASCA 161 [71].
In our respectful opinion, the conclusion that the admission of the evidence occasioned a miscarriage of justice is reinforced by consideration of the judge's direction as to the manner in which the jury was permitted to use the other conduct evidence.
The judge told the jury that this evidence was relevant background as to the relationship between AC, the appellant and AMC.[101] That was said to be context in which the alleged offences are said to have occurred and that 'it makes their accounts more intelligible'.[102]
[101] ts 274.
[102] ts 274 - 275.
The judge gave further detailed directions about this, as follows:[103]
For example, it may provide a helpful context, or even [be] necessary for an understanding of the narrative. It may explain a statement or event or conduct that would otherwise appear curious or unlikely. It may cut down or reinforce the plausibility of something a witness has said. It may assist you to use your common sense and experience of life to evaluate the evidence relevant to a particular event involving [AMC] or [TDC].
The State also says that the other conduct evidence shows that the offences alleged against [AMC] and [TDC] didn't happen in a vacuum or out of the blue, and that they were not isolated incidents. It's also something you're able to take into account in determining whether you consider the evidence of [AMC] and [TDC] to be honest, accurate and reliable. For example, if a complainant gives evidence that certain behaviour happened repeatedly over time, it may be relevant to your assessment of their credibility and their ability to recount details of a specific event.
That is, it may be more difficult to recall a specific incident, if such incidents were happening repeatedly over time. It may also explain any delay or failure to complain. Now, whether you use the other conduct evidence in the ways that I've just described, and if so, to what extent, are matters entirely for you. The ways I have described are the only ways in which you can use the other conduct evidence.
[103] ts 275.
It is apparent that, in so directing the jury, the judge identified a number of permissible uses for the evidence. The judge told the jury that the other conduct evidence was background and context that 'makes [the complainant's] accounts more intelligible', saying, by way of example that:
(1)The evidence 'may provide a helpful context or even [be] necessary for an understanding of the narrative'.
(2)The evidence 'may explain a statement or event or conduct that would otherwise appear curious or unlikely'.

(3)The evidence 'may cut down or reinforce the plausibility of something a witness has said'.

(4)The evidence 'may assist [the jury] to use [their] common sense and experience of life to evaluate the evidence relevant to a particular event involving [either complainant]'.

The judge then identified the following further permissible uses of the other conduct evidence:
(5)To show that the offences alleged against the complainants did not happen in a vacuum or out of the blue and were not isolated incidents.
(6)To take it into account in determining whether the jury was satisfied that the evidence of each complainant was honest, accurate and reliable, giving an example that if a complainant gave evidence that certain behaviour happened repeatedly over time, it may be relevant to the jury's assessment of the complainant's credibility and the complainant's ability to recount details of a specific event.
(7)To explain any delay or failure to complain.

Several observations may be made as to these directions.
First, it is, in our respectful opinion, undesirable and inappropriate for a judge directing a jury to attempt to deal compendiously with various species of other conduct evidence, some of which were capable of being put to one (or more) use, and others of which were capable of being put to a different use, and which related to different counts and to different accused. As recently emphasised in JEL, specificity and precision is of vital importance in this area.
Secondly, we have already explained why, contrary to the respondent's submission, the second and third uses identified in [121] above were not available or permissible. The same was true of all of the uses of the other conduct evidence identified in [121] above in circumstances where (i) AMC gave no evidence as to count 1, (ii) AMC had made no complaint as to it, and (iii) the other conduct was said to have occurred some years after the occurrence of counts 1 ‑ 3.
Many of the uses identified in [121] simply made no sense. Taking the first as an example, in circumstances where the evidence as to count 1 came solely from NC, in order to be indirectly relevant, the other conduct evidence must be capable of assisting in the evaluation of NC's evidence. There was no room for the other conduct evidence to provide 'context', much less to be necessary for an understanding of the narrative described by NC. Similarly, it made no sense to say that the other conduct evidence may explain any delay or failure to complain. Again, the sixth identified use - to assist in determining whether a complainant's evidence was honest, accurate and reliable - made no sense in circumstances where AMC gave no evidence as to the conduct the subject of count 1.
At best, these directions were liable to create substantial confusion in the mind of the jury.
Thirdly, again with respect, it is difficult to avoid the conclusion that this direction involves the use of a template without the necessary attention being given to which, if any, aspect of the template is apposite to the particular evidence the subject of the direction.
The various inapt and irrelevant uses identified as permissible by the judge's direction reinforce the conclusion that a miscarriage of justice arose from the admission of AMC's other conduct evidence in the case against the appellant, and from the judge's direction as to the use of that evidence.
For these reasons, ground 1A is made out.

Ground 1B: disposition

We are comfortably satisfied that, in all the circumstances, there was a real risk that the jury may have reasoned along the lines that the other conduct evidence proved that the two accused had acted on another occasion in a manner similar to count 1 and that this made it more likely that they committed count 1. It is reasonably possible that the jury may have so reasoned in response to the parts of the trial judge's direction on which the respondent relied in its submissions. More generally and in any event, the jury may have embarked upon such reasoning, based upon their own logic and experience, and bearing in mind the evident similarity between the events described in this part of AMC's other conduct evidence and the conduct the subject of count 1.
In this regard, it is significant that the prosecution stipulated, as a condition of use of the other conduct evidence, that the accused must have known that AMC was aware of what they were doing, and that the judge restated this condition.[104] That condition magnified the risk of propensity reasoning in relation to the other conduct evidence by establishing material similarity between the two incidents. Moreover, it is otherwise not easy to see the basis or need for the condition.
[104] ts 131 - 132, 237, 274.
For these reasons, ground 1B is established.
As already noted, the judge's direction concerning AMC's other conduct evidence confined the jury's use of the evidence to their evaluation of count 1. However, the respondent did not submit on appeal that any miscarriage of justice arising from the admission of this evidence, and the judge's directions concerning it, could properly be confined to count 1. In our view, the miscarriage of justice arising from these matters is not so confined. For the reasons already given, the judge's direction gave rise to a real risk that the jury would reason, by reference to AMC's other conduct evidence, that the appellant and AC having behaved in a similar manner in the incident the subject of the other conduct evidence made it more likely that they acted as alleged in relation to count 1. Given that counts 1 ‑ 3 involved a single incident said to have occurred in the presence of the three children, and given that the State case relied, in respect of all three counts, on the same evidence, it would be to expect the jury to perform unrealistic mental gymnastics for them to reach a different conclusion on the question of whether the conduct occurred as between counts 1 and 2.
For these reasons, we are satisfied that the wrongful admission of the other conduct evidence in the case against the appellant, and the consequential risk of the jury using propensity reasoning, gave rise to a miscarriage of justice in relation to both count 1 and count 2.

Ground 3: the absence of a direction that the evidence concerning counts 4 ‑ 8 was not relevant and must be disregarded in considering the case against the appellant

Appellant's submissions

Ground 3 contends that the trial judge erred in not sufficiently directing the jury that, in considering the case against the appellant, the jury must entirely disregard all of the evidence concerning counts 4 ‑ 8.[105]
[105] Appellant's submissions [63].
The appellant makes the following submissions in support of ground 3:
(1)Such a warning was contemplated by Lonsdale DCJ in her decision, but was not expressly given. Rather, the trial judge only directed the jury to disregard things said by AC in his video‑recorded interviews.
(2)In this regard, the judge's direction that there were 11 trials being conducted and that the jury needed to look at each count separately was not sufficient.
(3)An example of the deficiencies in the direction is that the trial judge failed to direct the jury that the other conduct evidence given by AMC was admissible only against AC.

Respondent's submissions

In response to ground 3 the respondent submits that:
(1)The direction given by the trial judge in the course of the trial, before the first electronic record of interview was played,[106] and the judge's direction in her summing up,[107] made it clear that what was said by AC in his interviews with the police was not admissible evidence against the appellant and was to be disregarded in the consideration of the case against the appellant.
(2)The judge emphasised to the jury, as was anyway clear, that a verdict of guilty on counts 1 ‑ 3 depended entirely upon the jury's satisfaction beyond reasonable doubt that NC's evidence was truthful, accurate and reliable.
(3)The judge explained to the jury that there were, in effect, 11 separate trials and that only the evidence that was relevant to each charge could be considered when looking at a particular charge. When the judge came to counts 1 ‑ 3, the judge reminded the jury that the State case relied on the evidence of NC. When the judge referred to other counts, it was made clear that these were brought only against AC.
(4)Understanding the trial judge's direction as a whole, the jury could not have been under any misapprehension that anything said by the complainants in their evidence was to be used in proof of counts 1 ‑ 3.

Disposition

[106] ts 185.

[107] ts 269.

The judge's directions, given both in the course of the trial and in her summing up, sufficiently made clear to the jury that what was said by AC in his interviews with the police was not admissible evidence against the appellant and was to be disregarded in the consideration of a case against her. However, the judge did not, at any time, expressly direct the jury that all of the evidence on counts 4 ‑ 8 was irrelevant to, and must be excluded from the jury's consideration of, the question of the appellant's guilt on counts 1 ‑ 3. Given the success of other grounds, it is not necessary to determine whether, understood as a whole, the direction sufficiently compartmentalised the evidence relevant to counts 1 - 3.
Ground 3 overlaps in part with ground 1A and succeeds to that extent. As already noted, the judge directed the jury that AMC's other conduct evidence was relevant to their consideration of count 1 against the appellant, whereas, for reasons already explained, that was not so.
For these reasons, we would grant leave to appeal on ground 3.

Ground 4

Ground 4 alleges that the judge was obliged to, and failed to, direct the jury that they must not reason that any of the evidence led in support of counts 4 ‑ 8 meant that the appellant was more likely to have committed the offences in counts 1 ‑ 3 of the indictment. It has in common with ground 1B a complaint as to the absence of a warning against propensity reasoning, although it identifies a different foundation for the asserted risk of propensity reasoning. To that extent, the ground is, in substance, subsumed by the success of ground 1B and need not be dealt with.

Ground 5: inconsistent verdicts

Appellant's submissions

Ground 5 contends that the verdicts of guilty on counts 1 and 2 cannot be reconciled with a verdict of not guilty on count 3, having regard to the facts of the case and the evidence that was presented. The appellant submits that:[108]
(1)The issue as to counts 1 ‑ 3, as explained by the judge in her Honour's summing up, was whether the appellant performed fellatio on AC in the presence of her three children while aware that they could observe what was occurring. The judge told the jury that a crucial issue for them to decide was whether the acts of fellatio occurred.[109]
(2)The only evidence capable of proving counts 1 ‑ 3 was the evidence of NC. The effect of her evidence was that all three children were together in the same bedroom within 2 m of the appellant and AC.
(3)Consequently, there was no factual basis on which the position regarding TLC, on count 3, could be distinguished from the position concerning the other two children the subject of counts 1 and 2.

Disposition

[108] Appellant's submissions [77].

[109] ts 283.

The principles applicable to a ground of appeal alleging factual inconsistency are well established. They were recently summarised by this court in NTH v The State of Western Australia in the following terms:[110]
[110] NTH v The State of Western Australia [2020] WASCA 22 [60] ‑ [61].
An appellant alleging factual inconsistency faces a high hurdle. Such an appellant must satisfy the court that, as an exercise of fact‑finding, in logic and reasonableness, the verdicts cannot stand together, meaning that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the conclusion. If there is a proper way by which the appellate court may reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, the verdicts will not be inconsistent in the relevant sense. If there is some evidence to support the verdicts said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.
Even where the appellate court is not persuaded that the verdicts may be reconciled in the sense we have explained, the verdicts are not necessarily inconsistent. In a passage that has been adopted in this court many times, in DPJB v The State of Western Australia, Owen JA made the following points:
1.If a jury returns an acquittal in relation to a count in respect of which a prosecution witness has given evidence, it does not follow that the jury must have concluded that the witness was generally untruthful or his or her credibility was compromised: [R v] Markuleski [[2001] NSWCCA 290; (2001) 52 NSWLR 82] [67]; R v KET [1998] VSCA 73 [29]. The jury might not have disbelieved the witness but thought the evidence lacked the requisite particularity as to time, place or circumstances to justify a conviction: Duniam v The Queen [1997] TASSC 107. Similarly, the jury might have regarded the witness's evidence as generally credible but thought that, in relation to some issues, the witness's recollection was faulty: R v LR [2005] QCA 368; [2006] 1 Qd R 435; R v J (No 2) [1998] 3 VR 602, 628.
2.The court should be aware of the possibility that the jury may have taken a 'merciful' view of the facts and acquitted the accused on some counts for which, on the evidence, the accused ought to have been convicted: Lefroy [v The Queen [2004] WASCA 266; (2004) 150 A Crim R 82] [18]; MacKenzie (367 - 368). Although the jury's actions may be logically questionable, it is perhaps understandable and the court should not shut its eyes to the fact that it is part and parcel of the administration of justice by juries: Markuleski [227]; R v Kirkman (1987) 44 SASR 591, 593.
3.In assessing whether differing verdicts can stand together, the presence or absence of corroboration may be a relevant point of differentiation. For example, in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 the accused was charged with nine sexual offences against a male youth. Those offences were said to have occurred on four separate occasions. The jury acquitted the accused on seven counts relating to three of the occasions, but convicted him of two counts committed on the other occasion. The High Court dismissed his appeal on the ground of inconsistent verdicts. The differing verdicts were explicable on the basis that the two counts in respect of which the accused was convicted were the only counts which were substantially supported by the evidence of another witness.
4.The fourth point is closely related to the third. The presence or absence of evidence adduced by the accused which casts doubt on the prosecution case in respect of a particular count may explain differing verdicts. For example, in Lefroy the accused was charged with six counts of indecent dealing. The complainant was a pupil of the accused, a school teacher. Two of the counts were said to have taken place in the classroom while other students were present, two were said to have taken place at the accused's home and two were alleged to have taken place in a public shower block during a camping trip. The accused was convicted of the two counts which were said to have taken place in his home, but acquitted of the other four. The Court of Criminal Appeal found that the differing verdicts could be explained by the fact that the accused adduced evidence showing that other students had not seen anything untoward happen in the classroom and that the public showers were seldom used during camping trips to that location.
5.It may be more difficult to reconcile differing verdicts when the offences were said to have occurred at the same time or been part of one course of conduct. For example, in R v LR the accused was charged with six counts of rape. Three counts related to the alleged penetration of the complainant's mouth and three related to the penetration of her vagina. The prosecution case was that the accused had forced himself on the complainant and carried out the offences in one episode. The accused admitted two counts of oral penetration but claimed that it was consensual. He denied any vaginal penetration. The jury convicted the accused of two counts in relation to the oral penetration, but acquitted him in relation to the three counts of vaginal penetration and the remaining count of oral penetration. The court took the view that it was extremely difficult to identify any rational basis upon which the verdicts could be reconciled. If the jury did not regard the complainant's evidence as sufficiently reliable to be satisfied that four acts of non‑consensual penetration occurred, it was difficult to see how they could have been satisfied that the two admitted acts of oral penetration said to have been committed in the same course of conduct were non‑consensual.
6.In reconciling verdicts the court should have regard to the way in which evidence was given by the witnesses. There may be subtle differences in the way the evidence was presented that led to differing verdicts: Markuleski [70]; Strickland v The Queen [2000] WASCA 68 [10]. The court should also be aware that pauses and other indications of indecision might not have been recorded in the transcript but nevertheless have been observed by the jury: R v J (1994) 75 A Crim R 522, 540. In other words, the appellate court should not ignore the fact that differing verdicts may be explicable by the peculiar advantage that is available to the jury from hearing the evidence first-hand which is not available to an appellate court. (citations omitted)
In our view, in the present case, the appreciably younger age of TLC, as compared to the other two children, provides a rational basis for reconciling the jury's verdict. TLC's age was not strictly proved, but there was evidence as to her date of birth that meant she would have been in the region of 8 to 10 months of age at the time of the alleged offence. That being so, it was open to the jury to have found that what occurred was not indecent, in that there was sufficient doubt that TLC would have had any awareness as to what was occurring.
For these reasons, there is no merit in ground 5. We would refuse leave to appeal on this ground.

Should there be an order for a retrial?

The principles relevant to the court's discretionary power under s 30(5) of the Criminal Appeals Act2004 (WA) to order a retrial or to enter a judgment of acquittal are well known and have been outlined in this court many times. See, for example, Wark v The State of Western Australia.[111]
[111] Wark [511] - [517].
In our view, the following matters combine to make it appropriate to order a retrial.
First, the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction. Indeed, no ground of appeal sought to impugn NC's evidence directly supporting the case against the appellant.
Secondly, 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 jury.
Thirdly, the miscarriage of justice at the appellant's trial occurred as a result of errors of law in the trial judge's reasoning. While the prosecution played a part in those errors, in submitting that AMC's other conduct evidence was relevant background or context, the miscarriage of justice is not properly attributable primarily to the manner in which the prosecutor ran, or did not run, the State 's case.
The offences alleged against the appellant are serious. While, for the reasons set out in the appellant's appeal against sentence, we consider that a term of immediate imprisonment was not open, the seriousness of the offences was such that only a term of imprisonment, ordered to be suspended, was an appropriate reflection of the seriousness of the alleged offences.
It may be accepted that the appellant's conviction has had adverse consequences for her in precluding her from continuing her work as a nurse, and in that she also spent a month in custody before she was released on bail by this court. However, we are not persuaded that the circumstances render it unjust to the appellant to require her to stand trial again.

Conclusion on conviction appeal

For the above reasons, we would make orders to the following effect:
(1)Leave to appeal is granted in respect of each of grounds 1, 1A, 1B and 3.
(2)Leave to appeal is refused in respect of grounds 2, 4 and 5.
(3)The appeal is upheld.
(4)The judgments of conviction against the appellant are set aside.
(5)The appellant is to be retried on counts 1 and 2.
As we would uphold the appellant's appeal against conviction, it is not necessary to deal with the appellant's appeal against sentence and, ordinarily, in those circumstances, this court would not do so. However, as we have reached a clear view that it was not open to impose a term of immediate imprisonment and, as we would order a retrial, we think it appropriate to explain why we would have upheld ground 1 of the appeal against sentence.

Sentence appeal

The facts

The trial judge made the following findings of fact, none of which are disputed on appeal.
In early 2007, while the appellant and AC were living with their children in Forrestfield, one day NC walked past a bedroom.
The door to the room was open. When NC looked inside she saw the appellant, who was pregnant, kneeling down with her head in AC's lap, performing fellatio on him while he sat on the edge of the bed with his pants down. AMC, who was then 4 years old, and TDC, who was 2 years old, were in the bedroom playing on the floor, so that what was happening occurred 'in [their] full view'.[112]
[112] ts 337.
NC called out, 'You're disgusting. Are you kidding?' and called out to the children to come with her and to immediately leave the room. The children did so and went with NC into the lounge room.[113]
[113] ts 337 - 338.
The judge found, consistently with the form of the indictment and the verdicts of the jury, that both the appellant and AC were jointly liable as principals for each of count 1 and count 2.[114]

Appellant's personal circumstances

[114] ts 338.

The appellant was aged 27 at the time of the offending and 41 at the time of sentencing.
The appellant and AC were in a relationship for approximately 20 years and together had six children, including AMC, TDC and TLC. By the time she was sentenced, the appellant had terminated the relationship and was the protected person under a violence restraining order made against AC. However, the trial judge noted that the appellant had visited AC on at least one occasion while he was remanded in custody. The appellant described AC as emotionally and verbally abusive and controlling of her.
In 2010, the four eldest children of the appellant and AC were removed from their care by the Department of Communities; Child Protection and Family Support (the Department). The appellant was the sole carer of the two youngest children until she was charged with the offences in 2019. When she was charged with the offences the Department removed the two youngest children from her care. Both of the two youngest children, one of whom was aged 4 at the time of sentencing and the other of whom was aged 2, were subject to a protection order. Since the two youngest children were removed from her care, the appellant has been participating in psychological counselling and a parenting programme with the Department. She has supervised contact with her two youngest children once a week. Prior to being sentenced, the appellant had attended 10 psychological counselling sessions, 3 parent education sessions and had also engaged in financial counselling.
In 2001 the appellant was diagnosed with Post Traumatic Stress Disorder. The appellant reported having been sexually abused as a child by her older brother for a number of years. In 2002 and again in 2004 the appellant suffered from post‑natal depression. When she was sentenced, the appellant was suffering anxiety and depression for which she had been prescribed medication through a mental health care plan.
The appellant completed year 12 at school. Later, she obtained a number of certificates for courses she completed as a young adult. At the time of sentencing the appellant was unemployed. She had been dismissed from her previous employment as an enrolled nurse because of her convictions. She hopes to retrain in the construction industry.
The appellant had a prior criminal record and consequently was not a person of prior good character for sentencing purposes. However, her previous offending was dealt with by the imposition of fines or community based orders. The appellant had not committed any prior offences of a sexual nature. Since 2007, when the offences in question were committed, the appellant's offending has been limited to three minor traffic offences.

Sentencing remarks

The trial judge identified the following serious features of the counts of which the appellant was convicted, namely counts 1 and 2:[115]
(1)The victims of the offending were the appellant's young, vulnerable children. As a parent, her responsibility was to protect, nurture, love and support her children and to provide them with a safe environment within which to thrive.
(2)The offending therefore demonstrated a gross and serious breach of trust and abuse of the position of authority as a parent. The victims were particularly vulnerable due to their young ages of 4 and 2. In that regard, the judge also referred to the age disparity between the appellant and the victims.
(3)Both offenders performed a sexual act knowingly in front of their children, thereby deliberately exposing them to being capable of observing the act.
(4)Together with AC's offences, the offending has had a significant ongoing traumatic psychological impact on AMC and TDC.
(5)The offending took place within the sanctuary of the victims' home.
[115] ts 339 - 340.
The judge identified, as matters of mitigation, the counselling that she had undertaken and the trauma that she experienced in her childhood.[116]
[116] ts 349.
The judge did not accept that the appellant had any remorse. In this regard, the judge pointed to the appellant's continuing denial of the offending.[117]
[117] ts 348 - 349.
The judge imposed terms of 15 months' imprisonment on each of counts 1 and 2. The judge considered it was appropriate that the two terms be served concurrently.[118]
[118] ts 351.
The judge then turned to the question of whether the terms of imprisonment should be suspended. In her Honour's view, bearing in mind the serious features of the appellant's offending to which she had referred, general deterrence would not be achieved by a suspended sentence and there were no exceptional circumstances which would justify the suspension of the sentence.[119]

Grounds of appeal

[119] ts 352.

It is only necessary to deal with ground 1, which contends that the sentences imposed were manifestly excessive as to both type and length.

Appellant's submissions

The appellant submits that, having regard to the peculiar nature and circumstances of the offences, and the appellant's personal circumstances, it was not open to impose a term of immediate imprisonment.

Respondent's submissions

The respondent submits that implied error has not been demonstrated. In support of its submission that a term of immediate imprisonment was warranted, the respondent points to:
(1)The maximum penalty for each offence, namely 10 years' imprisonment.[120]
(2)The serious features of the offences highlighted by the sentencing judge as summarised at [166] above.
(3)The fact that there were two victims, and that the offending persisted until NC caused the children to leave the room.
(4)The limited mitigating factors in the appellant's favour, highlighting the absence of a plea of guilty, remorse, youth, prior good character or demonstrated rehabilitation.
(5)Finally, the two children's victim impact statements, which refer not only to AC, but to both parents. The respondent submits that it cannot be said with confidence that the offences have not had, or will not have, any detrimental effect upon the complainants.
[120] Criminal Code, s 329(4), s 329(10)(a).

In summary, the respondent submits that the lack of physical contact between the offenders and the victims is not sufficient to take the case outside the ordinary sentencing outcome for sexual offending against children, namely the imposition of a term of immediate imprisonment.[121]
[121] Appeal ts 22.
The respondent submits that this case was in the category of those where both immediate imprisonment and suspended imprisonment would have been within the sound discretionary range.[122]

Disposition

[122] Appeal ts 24.

The general principles governing an appeal alleging that a sentence is manifestly excessive are well‑established. See, for example, Kabambi v The State of Western Australia.[123]
[123] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The principles governing whether the imposition of immediate imprisonment, as distinct from suspended imprisonment, reveals implied error have been stated in many cases. See, for example, Cross v The State of Western Australia[124] and Monisse v The State of Western Australia.[125] The question is whether the appellant has demonstrated that it was not reasonably open to conclude that suspending the term of imprisonment was inappropriate. Thus, in a borderline case in which suspended and immediate imprisonment were each reasonably open, a decision not to suspend would not reveal implied error.
[124] Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 54 [33] ‑ [37].
[125] Monisse v The State of Western Australia [2021] WASCA 52 [36] ‑ [42].
The primary sentencing considerations for sexual offending against children are punishment of the offender, specific and general deterrence and the protection of vulnerable children. Matters personal to the offender are of less mitigatory weight than might otherwise be the case. There is no tariff for sexual offences against children, including, specifically, for indecent dealing with a child. Ordinarily, as the appellant accepts, a sentence of immediate imprisonment is imposed for sexual offending against children. However, that fact does not relieve a sentencing judge of the obligation to assess whether, having regard to all the facts and circumstances and all the sentencing factors in the particular case, it is appropriate to suspend the term of imprisonment.

It has been observed that non‑custodial sentences are not extraordinary for a single incident of indecent dealing with a child, particularly those cases involving the touching of the breasts of a young girl.[126]
[126] JD v The State of Western Australia [2008] WASCA 147 [18]; GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272 [77]; The State of Western Australia v Shephard [2018] WASCA 140 [42].
Some cases in which suspended imprisonment was imposed for non‑penetrative sexual offending against children were outlined in Shephard,[127] namely JD v The State of Western Australia, GJT v The State of Western Australia and BGR v The State of Western Australia.[128] As explained in Shephard, those cases involved unusual and exceptional combinations of mitigating factors.
[127] Shephard [44] ‑ [48].
[128] BGR v The State of Western Australia [2014] WASCA 82.
We accept that the appellant's offences have the serious elements identified by the trial judge, and as summarised in [166]. Bearing those features in mind, only the imposition of a term of imprisonment properly reflected the seriousness of the appellant's offence. No lesser form of punishment was open.
However, notwithstanding those serious features, in our opinion, in all the circumstances, it was not open to impose a term of immediate imprisonment upon the appellant. The most material considerations leading to that conclusion are as follows.
In evaluating the criminality of an offence, close attention must always be given to the particular circumstances and nature of the offence(s) for which sentence is to be imposed. The appellant's offending involved a single occasion. Her offences were to engage in sexual conduct with her partner, knowing that the two children could see what they were doing. The children were then aged 4 and 2. In our view, had the children been older, the offending conduct may well have been materially more serious. Her offending did not involve any contact with the children. It did not involve, and was not accompanied by, any verbal or other communication with any of the children beyond the commission of the physical act itself. There is, and could be, no suggestion that the presence of her children while she engaged in sexual conduct with her partner was a source of sexual gratification for the appellant. Nor is there, nor could there be, a suggestion that the appellant acted with any view to the corruption of the children.
In the 15 years between when this offending occurred and the time when the appellant was sentenced, the appellant had not offended in any, even remotely, similar manner. Further, in that long period of time she has not offended at all, beyond some minor traffic offences.
The offending occurred in the context of a relationship in which AC was emotionally and verbally abusive, and controlling of the appellant.[129]
[129] ts 346.
Further, the appellant had the mitigating factors identified by the judge. She had suffered some abuse in her childhood. She has taken steps towards rehabilitation in undertaking a number of courses as outlined above.
The victims, AMC and TDC, gave no evidence of the offence and evidently had no recollection of it at the time of trial and sentencing. While we accept that, as the respondent submits, it cannot be assumed that the offence will not cause harm to the victims, this is not a case where the offending is known, or can be assumed, to have caused significant harm to the victims. In that regard, the comments expressed in general terms in the victim impact statements cannot, given the victims' evident lack of recollection of the event the subject of counts 1 and 2, be taken to be founded upon or referring to those offences.
In our opinion, taking into account:
(1)the maximum sentences for the offences;
(2)the facts and circumstances of the offending, including those identified in [183] above;
(3)the place the offending occupies in the scale of seriousness of offences of indecent dealing against a child;
(4)the importance of deterrence and punishment;
(5)all aggravating and mitigating factors;
it was not open to conclude that immediate imprisonment was the only appropriate disposition.
Consequently, had we not upheld the conviction appeal, we would have upheld ground 1of the sentence appeal. However, because we would uphold the conviction appeal, it is appropriate to order that the sentence appeal is dismissed. Thus, no question of resentencing arises.

Conclusion

For the above reasons:
(1)In the conviction appeal, we would make the orders in [153] above.
(2)In the sentence appeal, we order that the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BS
Associate to the Honourable Justice Buss
13 MAY 2022