JPH v The State of Western Australia

[2022] WASCA 99

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   JPH -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 99

CORAM:   BUSS P

MAZZA JA

VAUGHAN JA

HEARD:   11 FEBRUARY 2022

DELIVERED          :   4 AUGUST 2022

FILE NO/S:   CACR 112 of 2020

BETWEEN:   JPH

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   SCOTT DCJ

File Number            :   IND 574 of 2018

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of 16 counts of sex offending against three boys - Whether the trial judge misdirected the jury in relation to the evidence of a witness as to his conversations with the appellant - Whether there was a real risk that the jury might use the evidence of the witness for or in support of propensity reasoning

Legislation:

Criminal Code (WA), s 321

Result:

Appellant's application for an extension of time within which to appeal dismissed
Appellant's application in an appeal dated 10 May 2021 for leave to adduce additional evidence in the appeal dismissed
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Mr S D Freitag SC
Respondent	:	Mr B M Murray

Solicitors:

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

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

B v The Queen [1992] HCA 68; (1992) 175 CLR 599

BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499

CDO v The State of Western Australia [2022] WASCA 58

Dann v The State of Western Australia [2021] WASCA 15

De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1

Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 394 ALR 194

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

HML v The Queen [2008] HCA 16; (2008) 235 CLR 334

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

JEL v The State of Western Australia [2022] WASCA 32

Johnson v The Queen [2018] HCA 48; (2018) 266 CLR 106

KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221

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

LNV The State of Western Australia [2019] WASCA 180

Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297

R v AH (1997) 42 NSWLR 702

R v Dookheea [2017] HCA 36; (2017) 262 CLR 402

Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610

Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650

TSP v The State of Western Australia [2021] WASCA 224

BUSS P & VAUGHAN JA:

1. The appellant has applied for an extension of time within which to appeal and for leave to appeal against conviction.

2. The appellant was charged on indictment with 21 counts of child sex offending.  The complainants were three boys, JP, CH and ZK.  At the material time, the appellant was a teacher and the principal at a school in the Perth metropolitan area and JP, CH and ZK were students at the school.

3. The appellant pleaded not guilty to the charged offences.

4. On 10 April 2019, after a trial before Scott DCJ and a jury, the appellant was found guilty of 16 of the charged offences.  Two of the convictions related to JP, 12 of the convictions related to CH and two of the convictions related to ZK.

5. On 4 July 2019, the trial judge sentenced the appellant to a total effective sentence of 11 years' imprisonment with eligibility for parole.

6. The last date for the appellant to appeal against conviction was 25 July 2019.  He did not file his appeal notice until 6 August 2020.  The appellant's application for an extension of time is supported by his affidavit sworn 30 July 2020.

7. Initially, the appellant relied upon two grounds of appeal.  However, at the hearing of the appeal, counsel for the appellant abandoned one of the grounds.  The remaining ground alleges that the trial judge made a wrong decision on a question of law, or a miscarriage of justice was occasioned, by his Honour's failure to direct the jury that the evidence of JC (another boy who had attended the school in question) about conversations that JC allegedly had with the appellant concerning masturbation could not be used as propensity evidence.

8. The appellant filed an application in an appeal dated 10 May 2021 to adduce additional evidence in the appeal in relation to the abandoned ground of appeal.  In the circumstances, the appropriate order is that the appellant's application be dismissed.

9. The appellant's remaining ground of appeal is without merit.  It is therefore pointless to grant an extension of time within which to appeal.  The application for an extension of time should be dismissed.  Leave to appeal should be refused.  The appeal must be dismissed.

The offences of which the appellant was convicted

1. As to JP, the charged offences of which the appellant was convicted alleged that:

   (a)On a date unknown between 11 July 2013 and 20 December 2013 the appellant indecently dealt with JP by touching his genitals, contrary to s 321(4) and s 321(8)(b) of the Criminal Code (WA) (the Code) (count 1).

   (b)On another unknown date between 11 July 2013 and 20 December 2013 the appellant indecently dealt with JP by touching his genitals, contrary to s 321(4) and s 321(8)(b) of the Code (count 2).

2. As to CH, the charged offences of which the appellant was convicted alleged that:

   (a)On a date unknown between 11 July 2013 and 20 December 2013 the appellant procured CH to do an indecent act, namely expose his penis, contrary to s 321(5) and s 321(8)(b) of the Code (count 3).

   (b)On the same unknown date and at the same place as in count 3 the appellant indecently dealt with CH by touching his penis, contrary to s 321(4) and s 321(8)(b) of the Code (count 6).

   (c)On a date unknown between 11 July 2013 and 19 December 2013 the appellant indecently dealt with CH by masturbating his penis, contrary to s 321(4) and s 321(8)(b) of the Code (count 8).

   (d)On the same unknown date and at the same place as in count 8 the appellant sexually penetrated CH by engaging in fellatio, contrary to s 321(2) and s 321(7)(b) of the Code (count 9).

   (e)On another unknown date between 11 July 2013 and 19 December 2013 the appellant indecently dealt with CH by masturbating his penis, contrary to s 321(4) and s 321(8)(b) of the Code (count 10).

   (f)On the same unknown date and at the same place as in count 10 the appellant sexually penetrated CH by engaging in fellatio, contrary to s 321(2) and s 321(7)(b) of the Code (count 11).

   (g)On the same unknown date and at the same place as in count 10 the appellant indecently dealt with CH by permitting CH to masturbate the appellant's penis, contrary to s 321(4) and s 321(8)(b) of the Code (count 12).

   (h)On the same unknown date and at the same place as in count 10 the appellant encouraged CH to engage in sexual behaviour by engaging in fellatio, contrary to s 321(3) and s 321(7)(b) of the Code (count 13).

   (i)On an unknown date between 14 December 2014 and 17 December 2014 the appellant sexually penetrated CH by engaging in fellatio, contrary to s 321(2) of the Code (count 17).

   (j)On the same date and at the same place as in count 17 the appellant encouraged CH to engage in sexual behaviour by engaging in fellatio, contrary to s 321(3) of the Code (count 18).

   (k)On an unknown date between 20 July 2015 and 22 August 2015 the appellant encouraged CH to engage in sexual behaviour by engaging in fellatio, contrary to s 321(3) of the Code (count 19).

   (l)On the same date and at the same place as in count 19 the appellant sexually penetrated CH by engaging in fellatio, contrary to s 321(2) of the Code (count 20).

3. As to ZK, the charged offences of which the appellant was convicted alleged that:

   (a)On the same unknown date and at the same place as in count 3 the appellant procured ZK to do an indecent act, namely expose his penis, contrary to s 321(5) and s 321(8)(b) of the Code (count 4).

   (b)On the same unknown date and at the same place as in count 3 the appellant indecently dealt with ZK by touching his penis, contrary to s 321(4) and s 321(8)(b) of the Code (count 7).

4. All of the charged offences alleged that JP, CH and ZK was a child of or over the age of 13 years and under the age of 16 years.

5. All of the charged offences, apart from counts 16, 17, 18, 19, 20 and 21, alleged that JP, CH or ZK, as the case may be, was then under the appellant's care, supervision or authority.

The State's case at trial and the appellant's case at trial

1. The State's case at trial and the appellant's case at trial are summarised in Mazza JA's reasons.  We will not repeat his Honour's summary except to the extent necessary to explain our reasons.

The prosecutor's opening address at trial

1. The prosecutor told the jury in her opening address, relevantly, as follows:

   (a)The appellant was the principal of the school from 2007 until the end of 2013.  He continued at the school as a teacher until the end of the first term in 2014.  He then moved to the United Kingdom to teach (ts 266).

   (b)The appellant was a well‑respected principal and teacher at the school.  He was known to be approachable and helpful.  The appellant helped his students when they had behavioural difficulties, when they had trouble at home and when they had difficulties with their schoolwork.  The appellant spoke to, mentored and counselled his students.  He assisted many of his students in a positive way.  But he also 'sexually abused three of them', namely CH, JP and ZK (ts 267).

   (c)The appellant became very close to CH.  He was not merely a principal or teacher.  He became a mentor and a friend.  The prosecutor elaborated:

   Step by step, the usual boundaries between teacher and student or principal and student were broken down.  Conversations between [CH] and [the appellant] became personal and then sexualised.  And later on, sexual dialogue then morphed into touching and eventual sexual acts (ts 267).

   (d)JP would give evidence that on a day in about 2013 he, CH and ZK were in the appellant's office.  The appellant asked the three boys whether they had masturbated.  The next day JP was removed from class by the appellant and asked again whether he had ever masturbated and whether he watched pornography.  At the appellant's request, JP exposed his genitals in the appellant's office and the appellant touched them.  The following day a similar incident occurred.  JP was again removed from class by the appellant.  In the appellant's office, the appellant touched JP's genitals.  The next day JP, CH and ZK were in the appellant's office to be punished for an incident which had occurred on the basketball court.  At the appellant's request, CH and ZK exposed their genitals and ZK masturbated CH.  The appellant told the boys not to inform anyone about what had happened (ts 268).

   (e)CH would give evidence about the incidents involving the three boys which was, to some extent, different from JP's evidence.  CH's recollection was that the occasion in the appellant's office after the incident on the basketball court occurred on the same day as the incident.  The appellant encouraged the three boys to expose their penises so that the appellant could compare their size.  CH and ZK did as they were asked but JP did not.  The appellant touched CH's penis and ZK's penis (ts 268 - 269).

   (f)Another student at the school, JC, was given some personal assistance by the appellant, including tutoring in relation to his schoolwork.  JC became engaged in conversations with the appellant that 'on occasions, turned quite personal' (ts 269).  On one of those occasions, the appellant asked JC about masturbation and about how far 'his ejaculate spurts across the room' (ts 269).

2. The prosecutor then said to the jury:

   Now, ladies and gentlemen, that occasion [involving JC] is not the subject of any charges on the indictment.  The reason that you're going to hear about that incident is that [it] demonstrates that the [appellant] built up relationships with some of his students which were of far greater familiarity than what you would normally expect from a normal student teacher relationship, or student principal relationship.  Effectively, ladies and gentlemen, step by step the lines and the boundaries became blurred.

   It was a group of students, a group of boys, including [CH], who the [appellant] paid … a lot of attention to, and who he spent a lot of time with.

   Now, these kids had a lot in common, [and] that was mainly that they were all considered trouble[d] or problematic kids, in the sense that they all had some behavioural issues.  They often got in trouble at school, and the [appellant] gave them a significant amount of attention and time, by mentoring and tutoring them.  He helped them out when they had personal, or family, problems.  And he went above and beyond his obligations as a teacher, or as a principal.

   He treated them to lunches and dinners at cafes and restaurants.  And some of the boys, including [ZK], who we've already mentioned, and another boy called [AA], stayed at the [appellant's] house on one occasion.  He took them to the movies and the Royal Show.

   Now, ladies and gentlemen, it's important that you understand that the State does not suggest in any way that the [appellant] did anything untoward against these other boys.  There's no suggestion that he offended against [AA] or [JC], both of whom we are going to hear from during this trial.  They are going to give evidence, and they certainly haven't got any allegations in relation to the [appellant].  And they will tell you that they were very close to the [appellant], and that he was, effectively, the go to person.  There's no suggestion that the [appellant] did anything untoward in relation to [JC] or [AA].

   However, the fact that the [appellant] forged such close relationships with some of his students is relevant, because it, effectively, sets the context in which he was operating in relation to his students and [CH].  Because, whilst the [appellant] behaved in this very generous fashion towards boys who do not allege anything untoward, what, of course, that helped to do was to enhance his reputation as the go to person for troubled kids, and, effectively, a champion of troubled youth.

   His good reputation around the school, and the relationship of trust he built up with [CH] and [CH's] family, effectively, enabled the [appellant] to sexually abuse [CH] without [CH] resisting or telling anyone about it.  And, in fact, as you will hear, [CH] did not appreciate what was happening until a few years later (ts 269 - 270).

3. The prosecutor also told the jury in her opening address, relevantly, that when CH was in year 6 or year 7 the conversations he had with the appellant became more sexualised.  The appellant would raise topics such as masturbation, and say things such as, 'Are you masturbating?  Does anything come out?'.  The appellant would also ask CH how often he would masturbate.  On one occasion, the appellant told CH that, when he was a child, he and his friends would do mutual masturbation.  The appellant also asked CH about his sexual preferences; whether he liked boys or girls.  CH told the appellant that he liked boys.  Often, the appellant would ask CH whether there were any boys at the school whom he had a crush on (ts 270 ‑ 271).

4. Later in her opening address, the prosecutor reiterated that the jury would hear evidence from JC and AA.  Both of them had been students at the school, but neither had alleged any sexual abuse by the appellant.  Nevertheless, both of them 'were very close to [the appellant] during their time at [the school]' (ts 278).  The prosecutor elaborated:

   The [appellant] was their go to person and role model.  [AA] was friends with [ZK] and he will tell you that the [appellant] used to take him and [ZK] and a couple of other boys including [JK], you've already heard that name mentioned as well, to the Dome or the Royal Show and that he looked after [AA] and his little sister when [AA's] mother was sick.

   You're going to hear about this because it demonstrates that the [appellant] was very much a hands-on principal and formed very close relationships with his students, more so than one might expect from a principal.

   Now, as I said that doesn't mean that he offended against all of these students.  There are no such allegations in relation to [AA] and [JC], but it shows that the [appellant] was not the sort of principal who kept his students at an arm's length.

   He formed friendships with them, he gained their trust and in the case of [CH's] relationship allowed him to abuse [CH] over a number of years without [CH] being fully aware of what was going on (ts 278 ‑ 279).

5. The prosecutor referred to evidence that would be called from a woman who was a young teacher at the school in 2013.  The witness would give evidence that she observed the appellant's interactions with some of the year 8 boys.  The appellant was 'quite physical and affectionate with a group of boys including [CH]', and this included 'putting them into play headlocks or hugging them' (ts 279).  The prosecutor then explained that this evidence was part of the 'overall context' and it would become 'very clear [to the jury]' that there was a 'subtle and gradual process during which [the appellant] built up a relationship of trust with [CH], which he then proceeded to sexualise' (ts 280).

JC's evidence at trial

1. JC gave evidence in examination‑in‑chief, relevantly, as follows:

   (a)He described his relationship with the appellant as 'pretty casual'.  He would 'go to him for advice' about such matters as relationships or friendships (ts 372).

   (b)When he sought the appellant's advice he did so in the appellant's office or in the schoolyard (ts 373).

   (c)He recalled 'a couple of conversations about masturbation' with the appellant.  The conversations occurred in the appellant's office.  No one else was present.  He could not really remember what was said about masturbation (ts 373 ‑ 374).

   (d)He said that he and the appellant 'used to talk about a lot of stuff' and the topic of masturbation 'was just something that came up' (ts 374).

   (e)He said that the appellant asked him if he masturbated.  The appellant 'said it was all right to.  And not to be ashamed if [he] did' (ts 374).

   (f)He said that this conversation occurred when he was 'about 14' and he did not remember anything else about the conversation.  He said that he 'used to always be in and out of [the appellant's] office' (ts 374).

2. JC gave evidence in cross‑examination, relevantly, as follows:

   (a)In lower high school he struggled with maths and the appellant offered him extra tuition (ts 375).

   (b)While being tutored by the appellant they were, on occasions, alone together.  Nothing inappropriate occurred on those occasions (ts 375).

   (c)During his time at the school, he observed the appellant as a teacher and headmaster.  He formed the opinion that the appellant was a very caring, good man, who was prepared 'to give kids advice' and 'basically went the extra mile' (ts 375).

   (d)He never observed the appellant do anything inappropriate in his presence (ts 376).

   (e)His recollection of the conversations with the appellant in relation to masturbation was vague (ts 376).

3. The prosecutor did not re‑examine JC.

4. JC did not give evidence to the effect that the appellant had asked him 'how far his ejaculate spurts across the room'.  Defence counsel did not put to JC that his alleged conversations with the appellant about masturbation did not occur.

The appellant did not give evidence

1. The appellant did not give evidence at the trial.

2. The appellant's case at trial was that the allegations made by JP, CH and ZK were untrue.  The incidents the subject of the counts in the indictment did not happen.

The express references at trial to the appellant having engaged in 'grooming' behaviour

1. At the trial there were a number of express references to the appellant having allegedly engaged in 'grooming' behaviour.  In particular:

   (a)Defence counsel put to CH in cross‑examination a communication on Facebook by CH with MK (who was the mother of one of CH's friends) in October 2016.  In the Facebook communication CH said that 'the reason why [he] still wanted to go to England after the abuse had started [was] because [he] didn't know it was wrong, as [the appellant] had groomed [him] into thinking it was ok' (ts 112).

   (b)Defence counsel asked CH in cross‑examination whether CH was seriously suggesting that he did not know as a teenager that the things the appellant, as CH's headmaster, was allegedly doing were wrong (ts 128).  CH answered that from year 3 in school up to that time CH 'had been groomed' by the appellant (ts 128).

   (c)The prosecutor told the trial judge, in the absence of the jury, during debate about the admissibility of proposed evidence from CH's mother, that 'a major claim [in] the State's case' was that the appellant had 'groomed' CH and gained his trust (ts 402).  The prosecutor repeated that assertion, in the absence of the jury, in discourse with his Honour (ts 404, 405).

The trial judge's ruling about the admissibility of JC's evidence

1. After the close of the State's case, there was a discussion between the trial judge, the prosecutor and defence counsel, in the absence of the jury, in relation to the admissibility of JC's evidence.

2. The prosecutor told his Honour that 'the masturbation talk comes in in the sense of relationship evidence and in that context I will be referring to [JC] as well' as the complainants (ts 524).

3. Defence counsel said that JC's evidence concerned 'a vague conversation about masturbation in circumstances where he's never sexually dealt with' (ts 528).

4. The prosecutor submitted that JC's evidence about his conversations with the appellant concerning masturbation were 'significantly probative' because it was 'a highly unusual conversation for a principal to have' with a 14‑year‑old student (ts 529).

5. Defence counsel submitted that JC's evidence about these conversations was vague and constituted non‑contextual conversations that allegedly occurred between the appellant and JC (who did not allege any sexual impropriety by the appellant).

6. The trial judge ruled that, while JC's evidence was relevant, the evidence was not 'significantly probative', within s 31A(2)(a) of the Evidence Act 1906 (WA). His Honour said:

   The matters raised by [JC] in his [witness] statement were clearly compelling … but he didn't come up to proof.  My view is that the evidence is relevant, but I'm not satisfied it's significantly probative.  I can't be satisfied [that] it's significantly probative because I don't know the circumstances referable to the conversations in which the term masturbation was raised.

   [JC] refers to a couple of conversations about masturbation.  He can't remember the way in which the topic came up on this occasion.  The highest it gets is the passage to which I referred and that is just asked if I did and said it was all right to, not to be ashamed if I did.

   I don't know – it's not clear whether [JC] raised it and asked for some advice.  It's not clear whether [the appellant] pursued the topic because he was interested in it because he had some sort of sexual interest, but the jury can't speculate about that.

   The short answer to it is that it is not significantly probative.  It has to be important in the overall context of tendency.  It doesn't demonstrate a tendency on the part of [the appellant] to be interested or have a sexual interest in pubescent children.  It would have been very helpful had [JC] made clear what the conversation was so that the material could be considered in context but he didn't.  And in no circumstances - it is not cross‑admissible (ts 533 ‑ 534).

7. A little later, after further discussion with the prosecutor and defence counsel, his Honour said:

   I've always understood … that [JC's] evidence was to put in context [the appellant's] interaction and close interaction with school students be it helpful or otherwise and underpins the state of mind of [CH] insofar as the relationship with [the appellant] was concerned and it's a matter of context (ts 535).

The prosecutor's closing address at trial

1. The prosecutor submitted to the jury in her closing address, relevantly, as follows:

   (a)This was a case of 'a school principal developing a very close relationship with a student step‑by‑step, very gradually, very subtly, thus earning the student's trust' (ts 3).

   (b)There was tutoring, mentoring and friendship.  It was a subtle process.  The close relationship, which was 'not your typical student‑teacher relationship or student‑principal relationship, allowed [the appellant] to move to more intimate areas, to sexual talk and then to touching and then to sex' (ts 3).

   (c)Usually, you might expect a student who was asked by his teacher about 'such personal and intimate things [as masturbation] to be somewhat alarmed' (ts 3).  However, in the present case, this was not the appellant, as the principal, who was asking these questions.  It was the appellant, as a 'mentor and friend', who was asking the questions (ts 3).

2. The prosecutor then said to the jury:

   As we've heard, [the appellant] related to a number of his students, or let's say some of his students, in a rather casual way.  You have heard evidence from [JC], who would describe his relationship with [the appellant] as 'Pretty casual.  I would go to him for advice'.

   [JC] said that he would have conversations with [the appellant], which would then take place in the school yard or [the appellant's] office.

   [JC] said that he couldn't really remember any specific conversations, but maybe a couple of conversations about masturbation.

   When he was asked how this topic came up, [JC] couldn't really remember, but he said:

   'Just asked if I did, and said it was all right to, and not to be ashamed if I did.'

   Now [JC] gave evidence that [the appellant] was a great teacher who went to the extra length and that he never observed anything inappropriate occurring.

   And we are not suggesting that [the appellant] offended against [JC].  I told you at the beginning of this trial.  There's no suggestion that [the appellant] had a sexual interest in [JC], or that he offended against him.

   But the conversations that he had with [JC] about masturbation are nevertheless relevant, and the reason for that is that they are highly unusual.  These are not conversations that took place between a bunch of teenagers in the locker room.  They took place between a 14‑year‑old and his school principal.

   And ladies and gentlemen, the reason that this is important is that it simply shows you how the boundaries between principal and student got blurred, and which explains how he could get so close to [CH] without [CH] actually suspecting anything untoward, or with[out] anyone suspecting anything untoward.

   You might think it's not unsurprising that a number of boys thought that he was a great teacher because he was so approachable.  He took an interest in his students.  He wasn't just a disciplinarian whom the pupils would only see if they were in trouble.  He was on the ground, so to speak.  He had dealings with them on a regular basis, and no doubt he helped a number of his students (ts 3 ‑4).

Defence counsel's closing address at trial

1. Defence counsel submitted to the jury in his closing address, relevantly, that:

   (a)There was no suggestion that the appellant had inappropriately touched, made inappropriate comments to or done anything towards JC (ts 52).

   (b)In fact, 'when you pare back [JC's] evidence to its very core, [the appellant] got a character reference from a State witness' (ts 52).

   (c)If the jury were to accept JC's evidence, 'that decreases the likelihood of [the appellant] having committed these offences.  Not what the State says.  It actually decreases, because [the appellant's] a good man, he's a solid man, he's a good educator.  That's what he does' (ts 52).

The trial judge's summing up

1. The trial judge gave directions to the jury in his summing up, relevantly, as follows:

   (a)His Honour instructed the jury that if the jury was satisfied beyond reasonable doubt as to the appellant's guilt on one or more of counts 1, 2, 4, 6 and 7 (the counts in question) then the jury could consider the evidence on the count or counts on which the jury found the appellant to be guilty, along with all the other evidence, in deciding whether the State had proved the appellant's guilt on any one or more of the counts in question (ts 609 – 611).

   (b)His Honour told the jury that they had heard some evidence which related to the circumstances of which CH had given evidence 'as to why it was that [CH], on his version, [did not] make a complaint or come to the realisation of the nature of the sexual relationship he had with [the appellant], as being something that was terribly wrong' (ts 611).

   (c)His Honour noted that the jury had heard the evidence of 'a couple of students' (that is, JC and AA) who had spoken about the appellant.  In particular, his Honour noted:

   [JC] said that [the appellant] was his maths teacher in year 9.  [JC] was struggling with maths and he was offered extra tuition, and took [the appellant] up on that offer.  … he formed an opinion that [the appellant] was helpful.  [The appellant] was always keen to please and to assist school children under his care (ts 612).

   (d)The State led the evidence from JC 'to establish the context in which the relationship between [the appellant] and [CH] developed, as tending to show [that the appellant], as headmaster of the school, had a casual relationship with students, and had a reputation of a relationship of trust, which the State says created the environment of ongoing trust and reliability, which was [CH's] state of mind' (ts 612).

   (e)His Honour added:

   And it bolsters, the State says, the explanation given by [CH] as to the reasons why he did not consider that the sexual relationship that he had forged over time with [the appellant] was something that was so terribly wrong (ts 612).

   (f)Next, his Honour instructed the jury that the jury '[could] only use this evidence of this sort of material if you find it reliable and believe it to be true' (ts 613).

   (g)His Honour gave a Longman direction in conventional terms.  In particular, his Honour instructed the jury that:

   [I]t would be dangerous to convict [the appellant] on the uncorroborated evidence of [a] complainant, unless having scrutinised his evidence with great care, having considered the circumstances relevant to that evidence to which [his Honour had referred], and taking full account of the warning [his Honour had] just given you, you are satisfied beyond reasonable doubt … as to its truth and accuracy as to the elements of the charge you are considering (ts 616).

   (h)His Honour referred to JC's evidence to the effect that JC 'formed an opinion that [the appellant] was a good man, was very caring, was prepared to give kids advice and was one of the teachers who basically went the extra mile' in the context of a good character direction his Honour gave the jury in relation to the appellant (ts 618).

2. Neither the prosecutor nor defence counsel sought any redirection or additional direction from his Honour in relation to JC's evidence.

The appellant's submissions and the State's submissions in the appeal

1. The appellant's submissions and the State's submissions in the appeal are summarised in Mazza JA's reasons.  We will not repeat his Honour's summary except to the extent necessary to explain our reasons.

The merits of the ground of appeal

1. As we have mentioned, the sole ground of appeal ultimately relied upon by the appellant alleges that the trial judge made a wrong decision on a question of law, or a miscarriage of justice was occasioned, by his Honour's failure to direct the jury that the evidence of JC about conversations that JC allegedly had with the appellant concerning masturbation could not be used as propensity evidence.

2. At the trial, defence counsel did not object to the admissibility of JC's evidence.  On appeal, counsel for the appellant (who was not defence counsel at the trial) did not contend that JC's evidence was inadmissible.

3. The question as to the relevance of evidence, in a criminal trial before a judge and jury, is whether the evidence, if accepted, could rationally affect the jury's assessment of the probability of the existence of a fact in issue.  See Smith v The Queen.[1]  Evidence may have that effect directly or indirectly.  See Roach v The Queen.[2]  Evidence may be relevant if it assists in the evaluation of other evidence.  See HML v The Queen.[3]  Evidence is either relevant or it is not.  No question of discretion is involved.  A decision as to whether evidence is relevant is based on logic and general experience.  See BBH v The Queen.[4]  If evidence is not relevant, no further issue arises as to admissibility.  Irrelevant evidence will not be received.  See Smith [6].  The rules of exclusion at common law arise for consideration only with respect to evidence which is relevant.  See Papakosmas v The Queen;[5] Roach [14].

   [1] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 [7] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

   [2] Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610 [12] (French CJ, Hayne, Crennan & Kiefel JJ).

   [3] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [6] (Gleeson CJ).

   [4] BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499 [51] (French CJ).

   [5] Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 [21] (Gleeson CJ & Hayne J).

4. Subject to the trial judge's discretionary power to exclude evidence on the ground that its probative value is outweighed by its prejudicial effect, evidence (including evidence of disreputable conduct by the accused) may be given at a criminal trial if the evidence is relevant in placing the evidence as to the facts and circumstances of the charged offence into their true context as part of the essential background against which the complainant's evidence and any evidence of the accused must be evaluated.  See B v The Queen;[6] R v AH.[7]  However, care must be taken by a trial judge in directing a jury in relation to evidence that merely provides context or background.  See JEL v The State of Western Australia;[8] HTN v The State of Western Australia [No 2].[9]  The particular use or uses to which the evidence may be put must be identified with precision.  Ordinarily, it will be insufficient to state merely that the evidence provides context or background.  A general and vague statement to that effect is unhelpful.

   [6] B v The Queen [1992] HCA 68; (1992) 175 CLR 599, 602 - 603 (Mason CJ), 610 (Deane J).

   [7] R v AH (1997) 42 NSWLR 702, 708 (Ireland J; Hunt CJ at CL and Levine J agreeing).

   [8] JEL v The State of Western Australia [2022] WASCA 32 [219] (Buss P, Mazza & Beech JJA).

   [9] HTN v The State of Western Australia [No 2] [2022] WASCA 51 [81] (Buss P, Mazza & Beech JJA).

5. Ordinarily, where it is necessary to guard against a jury impermissibly using evidence for the purpose of propensity or tendency reasoning, the direction must inform the jury that:

   (a)the jury must not reason, on the basis of the evidence, that the accused was the kind of person who was likely to have committed the charged offence; and

   (b)the jury must not take the evidence into account in deciding whether the State has proved beyond reasonable doubt that the accused committed the specific offence charged in the indictment.

   See Hill v The State of Western Australia;[10] JEL [141].

   [10] Hill v The State of Western Australia [2019] WASCA 209 [73] (Buss P & Mazza JA).

6. The risk of a jury engaging in propensity or tendency reasoning has been recognised as 'peculiarly strong' in cases involving alleged sex offences.  See De Jesus v The Queen;[11] Hamilton (a pseudonym) v The Queen.[12]

   [11] De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1, 3 (Gibbs CJ).

   [12] Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 394 ALR 194 [43] (Kiefel CJ, Keane & Steward JJ), [62] (Edelman & Gleeson JJ).

7. There may, however, sometimes be a case (see, for example, Dann v The State of Western Australia[13]) in which other conduct evidence may be used as a circumstance relevant to guilt without propensity or tendency reasoning.  See JEL [136] ‑ [137]; HTN [No 2] [114].

   [13] Dann v The State of Western Australia [2021] WASCA 15.

8. The directions which we have summarised at [38] above must be considered by taking those directions (and the summing up) as a whole and as a jury listening to the directions (and the summing up) as a whole might understand them, and not upon a subtle examination of the transcript or by giving undue prominence to any individual parts. See R v Dookheea.[14]

   [14] R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle & Edelman JJ).

9. In the present case, the State's case, as opened by the prosecutor, was, relevantly, as follows:

   (a)The appellant was a well‑respected principal and teacher.  He assisted his students with difficulties they experienced, including difficulties with their schoolwork, their behaviour and their life at home.  The appellant mentored and counselled his students.  He assisted many of his students in a positive way.

   (b)The appellant forged close relationships with some of his students.  He was very generous towards them, including by taking them to lunches and dinners at cafes and restaurants and by taking them to the cinema and the Royal Show.  The appellant's familiarity with these students was far greater than would ordinarily occur in a principal/student or a teacher/student relationship.

   (c)The students with whom the appellant forged close relationships included JC and AA.  The State disavowed any suggestion that the appellant had offended against or done 'anything untoward' with JC or AA.  JC and AA would give evidence that they were 'very close' to the appellant and that the appellant was, in effect, the 'go to' person.

   (d)The fact that the appellant forged close relationships with some of his students was relevant at the trial because it, in effect, set 'the context in which [the appellant] was operating in relation to his students'.  Although the appellant was very generous towards some of his students who did not allege that the appellant had offended against or done 'anything untoward' in relation to them, this generosity enhanced the appellant's reputation as 'the go to person for troubled kids' and 'a champion of troubled youth'.

   (e)The State did not suggest that the appellant had offended against all of the students with whom he had forged close relationships.  However, the nature of those relationships showed that the appellant, as the principal or a teacher at the school, did not keep his students at arm's length.  He formed friendships with them.  The State alleged that the appellant had sexually abused three students with whom he had forged close relationships, namely CH, JP and ZK.

   (f)The State would adduce evidence from JC to the effect that JC had conversations with the appellant that 'on occasions, turned quite personal', including evidence that, on one of those occasions, the appellant had asked JC about masturbation and about how far 'his ejaculate spurts across the room'.  Although that occasion was not the subject of any charges on the indictment, the purpose of JC giving evidence about that occasion was to demonstrate that the appellant built up relationships with some of his students which were of far greater familiarity than would normally be expected and, step by step, the boundaries of the principal/student or teacher/student relationship were blurred.

   (g)The appellant's good reputation at the school, combined with the relationship of trust he built with CH and CH's family, enabled the appellant to sexually abuse CH without CH resisting or telling anyone about it.  Indeed, CH 'did not appreciate what was happening until a few years later'.  There was a 'subtle and gradual process' by which the appellant built up this relationship of trust with CH.  The appellant then proceeded 'to sexualise' the relationship.

1. As we have mentioned, JC gave evidence that he had 'a couple of conversations about masturbation' with the appellant in the appellant's office when no one else was present.  However, JC could not recall what was said about masturbation.  He said the topic of masturbation 'was just something that came up'.  The appellant asked him if he masturbated and told him that 'it was all right to' and that he should 'not be ashamed if [he] did'.  JC said that he was always 'in and out of [the appellant's] office'.  JC conceded in cross‑examination that he never observed the appellant do anything inappropriate in his presence and that his recollection of the conversations with the appellant about masturbation was vague.  JC did not give any evidence to the effect that the appellant had asked him 'how far his ejaculate spurts across the room'.

2. The trial judge ruled after the State closed its case and before the prosecutor began her closing address that JC's evidence was not 'significantly probative', within s 31A(2)(a) of the Evidence Act.  JC's evidence was admissible solely 'to put in context [the appellant's] … close interaction with school students be it helpful or otherwise'.  His Honour explained that JC's evidence '[underpinned] the state of mind of [CH] insofar as the relationship with [the appellant] was concerned'.  His Honour added that it was 'a matter of context' (ts 535).

3. The State's case, as closed by the prosecutor, was, relevantly, as follows:

   (a)The appellant related to some of his students 'in a rather casual way'.

   (b)The prosecutor recounted the substance of JC's evidence and noted that the State did not suggest that the appellant had a sexual interest in JC or that the appellant had offended against him.  Nevertheless, JC's evidence about the conversations he had with the appellant concerning masturbation were relevant because conversations of that kind between a 14‑year‑old boy and his school principal were 'highly unusual'.

   (c)The unusual character of those conversations showed how the boundaries between the appellant as principal, on the one hand, and his students, on the other, 'got blurred', and explained how the appellant 'could get so close to [CH] without [CH] actually suspecting anything untoward, or with[out] anyone suspecting anything untoward'.

   (d)It was unsurprising that a number of boys at the school thought that the appellant was a great teacher because he was 'so approachable'.  The appellant took an interest in his students.  The appellant had dealings with his students on a regular basis.  No doubt, he helped a number of his students.

4. His Honour directed the jury in his summing up, relevantly, that the State had adduced evidence from JC for the purpose of establishing 'the context in which the relationship between [the appellant] and [CH] developed'.  JC's evidence tended to show that the appellant, as principal, had a casual relationship with his students.  The appellant had a reputation of trust.  According to the State, this created 'the environment of ongoing trust and reliability, which was [CH's] state of mind'.  His Honour also directed the jury that, according to the State, the evidence from JC bolstered 'the explanation given by [CH] as to the reasons why [CH] did not consider that the sexual relationship … with [the appellant] was … "terribly wrong"'.  His Honour then directed the jury that the jury could only use the evidence from JC for the purposes his Honour had mentioned if the jury found the evidence to be truthful and reliable.

5. As we have mentioned, neither the prosecutor nor defence counsel sought any redirection or additional direction from the trial judge in relation to JC's evidence.

6. It is true that his Honour did not expressly instruct the jury that JC's evidence could not be used as propensity evidence.

7. However, in our opinion, upon reading the whole of the trial judge's directions in relation to JC's evidence as a jury listening to them might understand them, in the context of his Honour's summing up as a whole, there was no real risk that (if the jury accepted JC's evidence):

   (a)the jury may have reasoned, on the basis of JC's evidence, that the appellant was the kind of person who was likely to have committed one or more of the charged offences; or

   (b)the jury may have taken JC's evidence into account in deciding whether the State had proved beyond reasonable doubt one or more of the elements of one or more of the charged offences.

8. His Honour gave clear and specific directions as to the manner in which the jury could use JC's evidence.  The permitted use did not include use for or in support of propensity reasoning.

9. The prosecutor did not suggest that the jury could use JC's evidence for or in support of propensity reasoning.

10. In our opinion, there is no basis for supposing that there was any risk that, in the circumstances, the jury might use JC's evidence as evidence of a tendency by the appellant to groom JP, CH, ZK or any other student with a view to engaging in sexual acts with them.  That would appear to have been the view of the appellant's competent and experienced defence counsel who, as we have mentioned, made no objection to the manner in which his Honour instructed the jury in relation to JC's evidence.

11. JC's evidence, if accepted by the jury, did not occasion any material prejudice to the appellant.  JC did not assert that the appellant had groomed or attempted to groom him or had committed or attempted to commit any sexual act with him.  JC's evidence concerning the conversations with the appellant about masturbation were vague and general.  The conversations did not, of themselves, indicate that the appellant had committed any offence against JC or had engaged in behaviour in relation to JC that was discreditable or disreputable.  Indeed, a significant part of JC's evidence was to the effect that the appellant was a very caring and good man.  JC said that he had never observed the appellant do anything inappropriate in his presence.

12. The whole of JC's evidence at the trial occupied about 15 minutes (ts 371 ‑ 377).  The trial ran for about seven days.  JC's evidence was not significant in the context of the matters in issue at the trial and the evidence as a whole.

1. It is true that the trial judge did not draw to the jury's attention the fact that JC did not give the evidence adverted to by the prosecutor in her opening, namely that the appellant had asked JC about how far 'his ejaculate spurts across the room'.  The prosecutor's statement in opening that the appellant had asked JC about how far 'his ejaculate spurts across the room' was not mentioned again, in the presence of the jury, at the trial.  We are satisfied, on an objective appraisal of the trial record, that defence counsel took the view (which was reasonably open as a forensic decision) that it was in the interests of the appellant not to draw the jury's attention to the discrepancy between the prosecutor's opening and JC's evidence.

2. In our opinion, the trial judge did not make a wrong decision on a question of law as alleged in the remaining ground of appeal.  No miscarriage of justice has occurred.  The remaining ground of appeal did not have a reasonable prospect of success.

Conclusion

1. We would make orders as follows:

   (a)The appellant's application for an extension of time within which to appeal is dismissed.

   (b)The appellant's application in an appeal dated 10 May 2021 for leave to adduce additional evidence in the appeal is dismissed.

   (c)Leave to appeal is refused.

   (d)The appeal is dismissed.

MAZZA JA:

1. This is an appeal against conviction.  The appeal was filed about one year out of time.  The delay has not been satisfactorily explained.  Whether an extension of time is granted will depend upon the merits of the grounds of appeal.

2. The appellant was charged on indictment with 21 offences of a sexual nature committed against three boys who were aged between 13 and 16 years, whom I will refer to in these reasons as JP, CH and ZK.  At all relevant times, the appellant was a teacher at a school in a suburb of Perth and the boys were students under his care, supervision or authority at the school.

1. Between 2 and 10 April 2019 the appellant stood trial before Scott DCJ and a jury.  On 10 April 2019 the appellant was found guilty of 16 offences.[15] 

   [15] The jury was discharged from reaching a verdict on counts 5, 14, 15 and 16, after a no case submission was upheld and verdicts of not guilty were entered:  ts 537, 544.  The jury found him not guilty of count 21.

2. As to JP, the appellant was convicted of two counts of indecent dealing with a child of or over the age of 13 years and under the age of 16 years while under the appellant's care, supervision or authority, contrary to s 321(4) and s 321(8)(6) of the Criminal Code (WA) (the Code) (counts 1 and 2).

3. As to CH, the appellant was convicted of: one count of procuring a child of or over the age of 13 years and under the age of 16 years to do an indecent act while under his care, supervision or authority, contrary to s 321(5) and s 321(8)(b) of the Code (count 3); four counts of indecent dealing with a child of or over the age of 13 years and under the age of 16 years while under his care, supervision or authority, contrary to s 321(4) and s 321(8)(b) of the Code (counts 6, 8, 10 and 12); four counts of sexually penetrating a child of or over the age of 13 years and under the age of 16 years while under his care, supervision or authority, contrary to s 321(2) and s 321(7)(b) of the Code (counts 9, 11, 17 and 20); and three counts of encouraging a child of or over the age of 13 years and under the age of 16 years to engage in sexual behaviour while under his care, supervision or authority, contrary to s 321(3) and s 321(7)(b) of the Code (counts 13, 18 and 19).

4. As to ZK, the appellant was convicted of one count of procuring a child of or over the age of 13 years and under the age of 16 years to do an indecent act while under his care, supervision or authority, contrary to s 321(5) and s 321(8)(b) of the Code (count 4) and one count of indecent dealing with a child of or over the age of 13 years and under the age of 16 years while under his care, supervision or authority, contrary to s 321(4) and s 321(8)(b) of the Code (count 7).

5. On 4 July 2019 the appellant was sentenced to a total effective sentence of 11 years' imprisonment, with eligibility for parole, to commence that day.

6. The appellant relies on two grounds of appeal.  Ground 2 and a supporting application to adduce additional evidence were abandoned at the hearing of the appeal.  Ground 1 alleges:

   The trial judge made a wrong decision on a question of law, or a miscarriage of justice was occasioned, by failing to direct the jury that the evidence of JC about conversations that he alleged he had with the appellant about masturbation could not be used as propensity evidence.

7. The question of leave to appeal on this ground was referred to the hearing of the appeal. 

The State's case

1. The prosecution case was summarised by the prosecutor in her opening address.[16]  Between 2007 and 2014, the appellant was a teacher and principal at a small private school (the school) in a suburb of Perth.  He resigned as principal at the end of 2013, but remained working at the school as a teacher until the end of term 1 in 2014, when he and his wife moved to the United Kingdom to teach.  The appellant was a well‑respected teacher at the school.  He was known to be approachable and helpful, particularly with students who had difficulties, whether at school or at home.  The appellant often spoke to, counselled and mentored students in difficulty.  While it was not denied that the appellant helped many students in a positive way, the State's case was that he sexually abused the complainants.

   [16] ts 266 - 281.

2. The majority of the counts on the indictment related to CH.  CH began at the school as an 8‑year‑old in 2008.  As a teenager, he was often in trouble at school.  The appellant mentored and tutored CH, spending a lot of time with him.  CH came to think of the appellant as his friend.  The appellant also befriended CH's mother, who worked at the school.  CH's mother trusted the appellant and often sought his advice and guidance when CH had problems. 

3. By the time CH was 12 or 13 years old, the appellant and CH had become close.  The State's case was that the usual boundaries between teacher and student gradually broke down.  Conversations between the appellant and CH became sexualised.  The sexualised conversations then evolved into touching and sexual acts.  CH attended the school until halfway through year 9, when he was expelled.

4. On the State's case, when CH was in year 6 or 7, the appellant spoke to him about topics such as masturbation, asking him whether he masturbated and, if so, how often.  He also asked CH about his sexual preferences.  CH told him he liked guys and the appellant frequently asked him whether there were any boys at school that CH had a crush on.

5. The State alleged that the appellant, while alone with CH, engaged in sexual activity with him on a number of occasions.  The first incident of sexualised conduct between the appellant and CH occurred at the school on a weekend when the appellant was providing CH with private tutoring.  The incident occurred in what was referred to as the school's sick bay.  The appellant sat down next to CH and pulled his pants down.  He then started to masturbate CH's penis.  The appellant then sucked on CH's penis.  These acts comprise counts 8 and 9 on the indictment. 

6. A couple of weeks later, again when CH was being tutored by the appellant, another incident occurred in the school's sick bay.  On this occasion, the appellant again masturbated CH and sucked his penis.  CH then stroked and sucked the appellant's penis (counts 10 to 13). 

7. The State's case was that the appellant engaged in sexual activity with CH in the sick bay on more than the two occasions referred to above.  However, these occasions were the ones CH specifically recalled.

8. While the appellant was living in the United Kingdom, he and CH remained in contact. Counts 17 to 21 concern sexual acts that were alleged to have occurred between the appellant and CH on two occasions when the appellant returned to Western Australia from the United Kingdom for a holiday.  Counts 17 and 18 occurred in December 2014.  The appellant was staying at a caravan park down the road from CH's home.  CH went to the appellant's caravan.  There, the appellant and CH masturbated each other and performed fellatio on each other.  The following year, in July or August 2015, CH again went to the appellant's holiday caravan where they performed fellatio on each other.  The appellant also attempted to sexually penetrate CH's anus (counts 19 to 21).[17] 

   [17] ts 275.

9. The background to counts 1 and 2, in which JP was the alleged victim, is as follows.  In 2013, JP, CH and ZK attended the appellant's office because of a fight or argument that had occurred on a basketball court.  While in the appellant's office, the appellant asked the boys whether they masturbated.  The next day, the appellant took JP out of class and again asked him whether he had masturbated and whether he watched pornography.  While in his office, the appellant requested that JP expose his genitals, which he did.  The appellant then touched JP's genitals (count 1).  The following day, the appellant again called JP out of class and into his office.  There, he again touched JP's genitals (count 2).

10. The following day, JP, CH and ZK attended the appellant's office to receive their punishment for the incident at the basketball court.  The appellant requested that CH and ZK expose their genitals, which they did.  ZK then masturbated CH's penis.  The appellant then touched both of their genitals.  The appellant told the boys not to tell anyone what had happened.  These are the facts of counts 3 to 7.

11. The State's case was that the three complainants had a lot in common.  They were troubled or problematic children who had behavioural issues and often got into trouble at school.  For each of them, the appellant went above and beyond his obligations as a teacher or principal.  He treated them to lunches and dinners at cafes and restaurants.  ZK stayed at the appellant's house, as did another boy, AA, who was called as a State witness.  He also took them to the movies and the Royal Show. 

12. The State's case was that the appellant forged close relationships with some of his students.  The State said that this behaviour enhanced his reputation around the school and helped him build a relationship of trust between CH and his family, which enabled him to sexually abuse CH.

13. In May 2016, the appellant invited CH to stay with him and his wife in the United Kingdom.  At this time, CH's parents were concerned about his drug use.  They thought CH should go to the United Kingdom to help him get away from bad influences.  While in the United Kingdom, CH and the appellant resumed their sexual relationship.  By this time, CH was 16 years old. 

14. While in the United Kingdom, CH came across an article about child abuse and, after further research on the internet, came to realise that what had been going on between him and the appellant was wrong.  In June 2016, CH went to a police station in London.  On 14 June 2016, he participated in an interview with two London police officers.  This interview formed part of CH's evidence at the trial.

15. At the trial, CH and JP testified on behalf of the State.  ZK did not give evidence.  Among its other witnesses, the State adduced evidence from two former students of the appellant, AA and JC.  CH's mother, a teacher and the former deputy headmaster of the school also gave evidence for the State.

The defence case

1. The appellant elected not to give or adduce evidence in his defence.[18]

   [18] ts 537.

2. The defence case was that he was a man of good character and that none of the sexual acts in relation to the complainants occurred. 

JC's evidence

1. As mentioned, the State called two witnesses who were former students of the appellant's school, JC and AA.  In her opening address, the prosecutor explained that the State would lead evidence from these witnesses, not to suggest that the appellant had done anything 'untoward' to them, but to establish that the appellant forged close relationships with some of his students.  This fact was relevant because it was said to provide the 'context' in which the appellant operated in relation to his students and CH.  The State expressly acknowledged that the appellant had not offended against JC or AA.

2. The prosecutor told the jury that JC was tutored by the appellant and given personal assistance.  She said that JC would testify about an occasion 'the [appellant] asked [JC] about masturbation and about how far his ejaculate spurts across the room'.[19]  The prosecutor immediately followed this by stating:[20]

   Now, ladies and gentlemen, that occasion is not the subject of any charges on the indictment.  The reason that you're going to hear about that incident is that is demonstrates that the accused built up relationships with some of his students which were of far greater familiarity than what you would normally expect from a normal student teacher relationship, or student principal relationship.  Effectively, ladies and gentlemen, step by step the lines and the boundaries became blurred.

   [19] ts 269.

   [20] ts 269.

3. JC gave evidence on 4 April 2019.  His testimony lasted, according to the transcript, between 10 and 15 minutes.[21]

   [21] ts 371 to 377.

4. JC's examination‑in‑chief included the following:

   (a)He described his relationship with the appellant as 'pretty casual'.  He would 'go to him for advice' about such matters as relationships or friendships.[22]

   (b)When he sought the appellant's advice he did so in the appellant's office or in the schoolyard.[23]

   (c)He recalled 'a couple of conversations about masturbation', but he could not really remember what was said.[24]

   (d)He said that he and the appellant 'used to talk about a lot of stuff' and the topic of masturbation 'was just something that came up'.[25]

   (e)He said that the appellant asked him if he masturbated.  The appellant 'said it was all right to.  And not to be ashamed if [he] did'.[26]

   (f)JC said that this conversation occurred when he was 'about 14' and he did not remember anything else about the conversation.[27]

   [22] ts 372.

   [23] ts 373.

   [24] ts 373 - 374.

   [25] ts 374.

   [26] ts 374.

   [27] ts 374.

1. Under cross‑examination, defence counsel did not suggest that JC's evidence‑in‑chief was untruthful or inaccurate. In cross‑examination, JC said:

   (1)In lower high school he struggled with maths and the appellant offered him extra tuition.[28]

   (2)While being tutored by the appellant nothing inappropriate occurred.[29]

   (3)During his time at the school, he observed the appellant as a teacher and headmaster.  He formed the opinion that the appellant was a very caring, good man, who was prepared to give kids advice and basically went the extra mile.[30]

   (4)He never observed the appellant do anything inappropriate in his presence.[31]

   (5)His recollection of conversations in relation to masturbation was vague.[32]

   [28] ts 375.

   [29] ts 375.

   [30] ts 375.

   [31] ts 376.

   [32] ts 376.

2. The prosecutor did not re‑examine JC.

3. It is evident that JC did not testify to the effect that the appellant asked him 'how far his ejaculate spurts across the room'.

Discussions and ruling about the admissibility of JC's evidence

1. At the conclusion of the State's case, and in the absence of the jury, a number of issues of law were raised by the prosecutor and defence counsel. Defence counsel referred to JC's evidence and, in effect, queried whether it was admissible as relationship evidence pursuant to s 31A of the Evidence Act 1906 (WA).[33] As defence counsel developed his submission, the focus shifted to a contention that JC's evidence was not admissible as tendency evidence pursuant to s 31A of the Evidence Act.[34]

   [33] ts 526.

   [34] ts 532 - 533,

2. The prosecutor submitted that the conversations between the appellant and JC about masturbation were significantly probative because it was 'a highly unusual conversation for a principal to have' with a 14‑year‑old student.[35]  Defence counsel argued that the evidence was vague and constituted a 'non‑contextual conversation'[36] with a person who did not allege any sexual impropriety.

   [35] ts 529.

   [36] ts 531.

3. Defence counsel said that if JC had come up to proof (in the way described at [24] above) 'we would not be having this conversation'.[37]

   [37] ts 533.

4. His Honour ruled that, while the evidence was relevant, he was not satisfied that it was significantly probative, as required by s 31A(2)(a) of the Evidence Act, because:[38]

   I don't know the circumstances referable to the conversations in which the term masturbation was raised.

   [JC] refers to a couple of conversations about masturbation.  He can't remember the way in which the topic came up on this occasion.  The highest it gets is the passage to which I referred and that is just asked if I did and said it was all right to, not to be ashamed if I did.

   I don't know – it's not clear whether [JC] raised it and asked for some advice.  It's not clear whether [the appellant] pursued the topic because he was interested in it because he had some sort of sexual interest, but the jury can't speculate about that.

   The short answer to it is that it is not significantly probative.  It has to be important in the overall context of tendency.  It doesn't demonstrate a tendency on the part of [the appellant] to be interested or have a sexual interest in pubescent children.  It would have been very helpful had [JC] made clear what the conversation was so that the material could be considered in context but he didn't.  And in no circumstances - it is not cross‑admissible.

   [38] ts 533 - 534.

5. After further discussion with counsel, his Honour said that he understood JC's evidence as being 'a matter of context'.[39]

   [39] ts 535.

The prosecutor's closing address

1. Early in her closing address, the prosecutor, anticipating a submission by defence counsel that it did not make sense for a person like CH, who had allegedly been sexually abused, to have sought out the company of his abuser, referred to the context of the relationship between CH and the appellant.[40]  The prosecutor submitted, in effect, that this relationship needed to be seen in the wider context of other relationships the appellant developed while he was the school principal.  She submitted that the appellant developed close, trusting relationships, not only with CH, but also with CH's mother, JC and AA.  The prosecutor submitted that the appellant related to some of his students in a rather casual way.  She told the jury, 'You've heard evidence from [JC] who would describe his relationship with [the appellant] as "pretty casual.  I would go to him for advice"'.[41]  The prosecutor reminded the jury that JC could not remember any specific conversations, 'but maybe a couple of conversations about masturbation'.[42]  She referred to JC's testimony about masturbation, 'he said "[The appellant] just asked if I did, and said it was alright to, and not to be ashamed if I did'".[43]

   [40] Closing address ts 2 - 4.

   [41] Closing address ts 3.

   [42] Closing address ts 3.

   [43] Closing address ts 3 - 4.

2. The prosecutor also reminded the jury of JC's evidence that the appellant was 'a great teacher who went to the extra length and that he never observed anything inappropriate occurring'.  The prosecutor told the jury that the State did not suggest that the appellant offended against JC, nor that the appellant had a sexual interest in JC.  The prosecutor explained to the jury that the conversations the appellant had with JC about masturbation were relevant because they were 'highly unusual', as between a 14‑year‑old boy and his school principal.[44]  Their importance lay in that they showed 'how the boundaries between principal and student got blurred',[45] which, in turn, explained 'how the appellant could get so close to [CH] without [CH] actually suspecting anything untoward or with anyone suspecting anything untoward'.[46]

   [44] Closing address ts 4.

   [45] Closing address ts 4.

   [46] Closing address ts 4.

Defence counsel's closing address

1. Defence counsel, in his closing address, referred to JC's evidence, describing it as including 'a very vague and uncontextualised discussion regarding masturbation'.[47]  Defence counsel pointed out to the jury that the State did not suggest that the appellant did anything inappropriate to JC.  Defence counsel emphasised JC's testimony that the appellant was a good man who would go the extra mile for students and that he (JC) never saw the appellant do anything inappropriate.

   [47] Closing address ts 51.

2. Defence counsel submitted that JC's evidence about the appellant, when pared back, was 'a [good] character reference from a State witness'.[48]  Defence counsel elaborated:

   What that means is that if you accept what [JC] says, that decreases the likelihood of this man having committed these offences.  Not what the State says.  It actually decreases because he's a good man, he's a solid man, he's a good educator.  That's what he does.  Not according to them, but remember, he is their witness.

   [48] Closing address ts 52.

3. His Honour subsequently gave an orthodox good character evidence direction, including in respect of JC's evidence.[49]

   [49] ts 618.

His Honour's directions to the jury

1. His Honour delivered his summing up to the jury on 9 April 2019, five days after JC testified.

2. Relevantly to ground 1, his Honour gave the following directions.

3. His Honour directed the jury that they could use a finding of guilt in relation to one or more counts on the indictment in deciding whether the appellant was guilty of another count relating to the same complainant.  His Honour also directed the jury about how they may use a finding of guilt with respect to counts against different complainants.  Specifically, his Honour directed the jury that if they were satisfied beyond reasonable doubt that the appellant was guilty of one or more of counts 1 or 2, the evidence in relation to those counts may be relevant to counts 4, 6 and 7, and vice versa.  In giving all of these directions, his Honour stressed that, if the jury found the appellant not guilty of a count, they could not use the evidence about that count in consideration of any other count.  He also directed the jury that they could not convict the appellant of any count unless they were satisfied beyond reasonable doubt that he committed the specific act alleged against him in that count.[50]

   [50] ts 609 - 611.

4. Immediately after giving the directions referred to in the previous paragraph, his Honour gave directions in which he referred to the evidence of JC.  He did so in respect of the jury's evaluation of CH's evidence as to why he did not make an immediate complaint about the appellant's conduct nor realise that the nature of the sexual relationship he had with the appellant was wrong. 

5. His Honour referred to relevant parts of the evidence of CH.  He then referred to the evidence of JC, AA, the teacher and the deputy headmaster.  As to JC, his Honour said:[51]

   You've also heard the evidence of a couple of students who have spoken about [the appellant].  [JC] said that [the appellant] was his maths teacher in year 9.  He was struggling with maths and he was offered extra tuition, and took [the appellant] up on that offer.  Nothing of - he formed an opinion that [the appellant] was helpful.  He was always keen to please and to assist schoolchildren under his care.

   [51] ts 612.

6. His Honour explained to the jury that the State led this evidence (including the evidence of AA, the teacher and the deputy headmaster) to establish the context in which the relationship between the appellant and CH developed.  His Honour said:[52]

   Now, the State led this evidence to establish the context in which the relationship between [the appellant] and [CH] developed, as tending to show [the appellant] as headmaster of the school, had a casual relationship with students, and had a reputation of a relationship of trust, which the State says created the environment of ongoing trust and reliability, which was [CH's] state of mind.  And it bolsters, the State says, the explanation given by [CH] as to the reasons why he did not consider that the sexual relationship that he had forged over time with [the appellant] was something that was so terribly wrong. 

   [52] ts 612.

7. It is to be noted that, when encapsulating JC's evidence, his Honour did not refer to the conversations the witness had with the appellant about masturbation.

8. His Honour did not direct the jury that they could not adopt propensity or tendency reasoning in relation to JC's evidence about the conversations he had with the appellant about masturbation.  Defence counsel did not seek a direction or redirection to the effect that the jury should not engage in propensity or tendency reasoning in relation to this evidence.[53]

   [53] ts 622.

The appellant's submissions to this court

1. The appellant makes no complaint about the admissibility of JC's testimony concerning the conversations that he allegedly had with the appellant about masturbation.  In particular, the appellant does not submit that the evidence was irrelevant.  Before this court, senior counsel for the appellant said that the evidence:[54]

   was admissible for the purpose outlined by the State that was as effectively context or common law relationship evidence to show, as the State prosecutor opened, that the appellant had a particular approach to his work as a principal that was more casual than others might have expected, and that he developed relationships with students that were more informal, more supportive and in some senses more nurturing and outside of the normal, slightly stand‑offish role that principals might have within a school.

   [54] Appeal ts 27.

2. The appellant also makes no complaint about the directions which I summarised at [110] to [113] above.  The appellant's complaint in this appeal concerns directions that his Honour should have given, but failed to give.

3. The ground of appeal and the arguments in support of it complain, in substance, that the appellant suffered a miscarriage of justice.  The miscarriage of justice was occasioned by his Honour's failure to warn the jury against adopting propensity reasoning in respect of JC's testimony about the discussions the appellant allegedly had with him about masturbation, despite an obligation to do so.

4. Senior counsel for the appellant submitted that there was 'a real possibility that impermissible propensity reasoning would creep into the way [the] jury approached the evidence'.[55]  Senior counsel argued, in effect, that against the background of the State's case that the appellant engaged in a step‑by‑step process of blurring the appropriate boundaries between a school principal and the complainants,[56] JC's evidence could have been construed by the jury as grooming behaviour, and could have been impermissibly used to reason that the appellant was the type of person who was more likely to have engaged in sexual acts with the complainants.

   [55] Appeal ts 28.

   [56] Appeal ts 41 - 42.

5. Senior counsel for the appellant formulated the gravamen of the direction that he said his Honour should have given in this way:[57]

   The jury must not reason because [of] the evidence of JC about masturbation conversations with the [appellant] that the [appellant] was the type of person who was likely to have committed the alleged offences on the indictment, or the sort of person who had a tendency to engage in sexualised interactions or conversations with students.

   [57] Appeal ts 49.

The respondent's submissions to this court

1. On behalf of the respondent, it was submitted that the starting point was the admissibility of JC's evidence.  It was submitted that, absent this evidence, the jury might be sceptical of the complainants' evidence that the appellant spoke to them in his office about masturbation.  This scepticism may be dispelled by JC's evidence because it tended to establish that the appellant approached his relationships with students in a casual, personal and informal way.  As counsel put it, the jury, having heard JC's evidence, might reason:[58]

   Well, we understand, then, that that could be an aspect of his relationships with other pupils, and when other pupils say that he had those sorts of conversations, it makes them more likely to be true.

   [58] Appeal ts 53.

2. Counsel for the respondent submitted that there was no perceptible risk that the jury would have engaged in impermissible propensity reasoning, having regard to:

   (a)The vagueness of JC's evidence about the conversations concerning masturbation.

   (b)The State did not allege that JC's evidence was admissible for propensity purposes and clearly articulated the limited use which the jury could make of JC's evidence about the masturbation conversations.

   (c)His Honour directed the jury as to the proper use of JC's evidence.

   (d)JC's testimony was 'a very small aspect of the overall case' and did not 'have any great significance as the cases were put'.[59]

   (e)Defence counsel was alive to the issue and did not ask for a direction of the kind the appellant now says should have been given.  Further, to have given such a direction may well have highlighted the evidence and, to this extent, may have disadvantaged the defence case.

   [59] Appeal ts 59.

Disposition

1. JC's evidence was not adduced as propensity, tendency or relationship evidence pursuant to s 31A of the Evidence Act. 

2. It was not suggested by the State prosecutor in her opening or closing address that, because of JC's testimony about the conversations the appellant had with him about masturbation, the jury should reason that the appellant was the type of person who was likely to have committed the alleged offences in the indictment or was a person who had a tendency to engage in such conduct.  Defence counsel did not contend that JC's evidence could reasonably be understood by the jury in this way.

3. One may query, then, the admissibility of JC's testimony and, in particular, his testimony concerning the conversations he had with the appellant about masturbation.  Experienced defence counsel at trial did not seek to exclude JC's evidence on the basis that it was irrelevant or in the exercise of the trial judge's discretion.  On the State's case, JC's evidence was adduced to show the nature of the relationship the appellant had with some students at the school and to assist the jury, in particular, in its evaluation of CH's evidence as to why he did not promptly complain of the appellant's conduct or appreciate its wrongfulness.  In other words, the evidence was adduced as context evidence.  In this court, senior counsel for the appellant accepted that JC's evidence was admissible for this reason.  I will proceed on this basis.

4. The nature of context evidence has been described by the High Court in cases such as Roach v The Queen;[60] KRM v The Queen;[61] HML v The Queen[62] and Johnson v The Queen[63] and in this court in such cases as LNN v The State of Western Australia.[64]

   [60] Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610 [42].

   [61] KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [24].

   [62] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [6], [497] ‑ [499].

   [63] Johnson v The Queen [2018] HCA 48; (2018) 266 CLR 106 [19] - [20].

   [64] LNN v The State of Western Australia [2021] WASCA 39 [175].

5. It is well recognised that care must be taken when directing a jury in relation to context evidence.  As this court recently observed in JEL v The State of Western Australia[65] and HTN v The State of Western Australia [No 2],[66] it is necessary to precisely identify for the jury how they may use the evidence and to not leave the evidence to the jury without instruction.  Where evidence is admitted for the limited purpose of providing context, rather than going towards the proof of the prosecution case, and there is a risk that the jury may otherwise apply propensity or tendency reasoning to the evidence, a direction to guard against the risk will ordinarily be required to avoid a miscarriage of justice.  This is particularly so where the State invites the jury to adopt propensity reasoning in circumstances where the evidence could not properly be used for this purpose.  See LNV The State of Western Australia;[67] TSP v The State of Western Australia[68] and CDO v The State of Western Australia.[69]  The appellant does not suggest that the State invited the jury to adopt propensity or tendency reasoning.

   [65] JEL v The State of Western Australia [2022] WASCA 32 [219].

   [66] HTN v The State of Western Australia [No 2] [2022] WASCA 51 [81].

   [67] LNV The State of Western Australia [2019] WASCA 180 [78], [103].

   [68] TSP v The State of Western Australia [2021] WASCA 224 [51].

   [69] CDO v The State of Western Australia [2022] WASCA 58 [129].

6. The risk of a jury engaging in propensity or tendency reasoning has been recognised as 'peculiarly' strong in cases involving alleged sex offences.  See De Jesus v The Queen.[70]  Recently, in Hamilton (a pseudonym) v The Queen,[71] Kiefel CJ, Keane and Steward JJ, while recognising that courts must be astute to protect an accused person against the risk of impermissible tendency reasoning, which was 'peculiarly' strong in cases where sexual offences were alleged, went on to state:

   But there is no absolute rule that in such cases the risk of impermissible tendency reasoning is such as always to necessitate the giving of an anti‑tendency direction. The risk of tendency reasoning is not present in every case to the same extent; rather, the extent of the risk will depend upon the issues presented by the parties and the other directions given by the trial judge.

   [70] De Jesus v The Queen (1986) 61 ALJR 1, 3.

   [71] Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 394 ALR 194 [43].

7. In essence, the appellant contends in this appeal that there was a real risk of the jury engaging in impermissible propensity or tendency reasoning as a result of JC's evidence concerning conversations the appellant had with him about masturbation such as to require his Honour to direct the jury in the manner suggested at [54] above. The real issue to be determined in this appeal is whether there was such a risk.

1. I accept that conversations recounted by JC were unusual, having regard to their content and the appellant's position as principal.  However, I have reached the conclusion that the extent of the risk of impermissible reasoning by the jury was not such as to require a direction of the kind the appellant now contends should have been given.  I have reached this conclusion having regard to the combined force of the following factors:

   (1)JC did not testify to the effect that the appellant touched him inappropriately.  Indeed, JC testified to the effect that the appellant did not behave improperly towards him.  The appellant was not charged with any offence against JC.

   (2)The State did not allege any uncharged offending by the appellant in respect of JC.  Specifically, the conversations in which the subject of masturbation were discussed were not alleged by the State to amount to uncharged conduct, nor would a jury reasonably conclude it was conduct of this nature.

   (3)JC's testimony concerning the conversations the appellant had with him about masturbation was vague.  It was unclear who raised the topic, what was actually said and by whom and in what context.  JC's recollection of what the appellant specifically said to him was limited to the statement referred to at [30(e)] above.  JC did not testify, as the prosecutor foreshadowed in her opening address, that the appellant asked him how far he could ejaculate. 

   (4)At no time did the State rely upon JC's testimony as propensity or tendency evidence.  The State did not invite the jury to reason from JC's evidence that the appellant was the type of person who was likely to have committed the alleged offences or had a tendency to engage in sexualised interactions or conversations with students.  Nor was it alleged by the State that the appellant had groomed, or was attempting to groom, JC.

   (5)While JC's testimony about masturbation was referred to by the prosecutor in her closing address, it was not a matter upon which great emphasis was placed.  The prosecutor was clear about the limited use the jury could make of JC's testimony.  Experienced defence counsel dealt with this aspect of JC's evidence shortly in his closing address, in effect dismissing it as 'very vague' and 'uncontextualised'.  Defence counsel sought to use JC's testimony as good character evidence in favour of the appellant.

   (6)In his Honour's summing up, he did not specifically refer to JC's evidence about the conversations concerning masturbation.  This is consistent with the lack of emphasis this evidence was given at the trial.  His Honour directed the jury as to precisely how JC's evidence was to be used.  He said that JC's evidence was relevant to the 'casual relationship' and 'reputation of a relationship of trust' the appellant had with students which, on the State's case, bolstered CH's explanation as to why he did not promptly complain or appreciate the wrongfulness of the appellant's sexual conduct towards him.  No exception was taken to these directions at trial and none is taken now, including alleging that the directions were general or vague.

   (7)Unlike other cases recently decided by this court, his Honour did not direct the jury that they could take JC's evidence into account in deciding whether the State had proved the charges against the appellant.  See Hill v The State of Western Australia[72] and TSP v The State of Western Australia.[73]

   (8)It is significant that the appellant's experienced trial counsel did not seek a direction of the kind now suggested by the appellant.  While defence counsel's failure to seek a direction is not fatal to the ground of appeal, the failure to seek a direction indicates that defence counsel, immersed in the atmosphere of the trial, did not perceive there was a real risk that the jury would, as a consequence of JC's evidence, engage in impermissible propensity or tendency reasoning.

   (9)It may reasonably be concluded that, for sound forensic reasons, defence counsel at trial would not have wanted his Honour to give the direction now proposed by the appellant.  Such a direction would have drawn attention to JC's evidence concerning conversations he had with the appellant about masturbation in circumstances where the evidence had not received great emphasis and  a specific referral to it might have detracted from the good character direction his Honour had given the jury. 

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

   [73] TSP v The State of Western Australia [2021] WASCA 224.

2. Having regard to these factors, and notwithstanding the admonition that a court must be astute to protect an accused person against the risk of impermissible propensity or tendency reasoning in cases of alleged sexual offences, I regard the present case as being one where there was no real risk that, as a result of JC's testimony, the jury would engage in impermissible propensity or tendency reasoning such that a direction of a kind now posited by the appellant was required.  As the High Court pointed out in Hamilton, the risk of impermissible tendency reasoning is not present to the same extent in every case.  I have not been persuaded that his Honour's failure to give the direction now suggested by the appellant has given rise to a miscarriage of justice.  

3. As ground 2 and the application in support of it were abandoned at the hearing of the appeal, leave to appeal on ground 2 should be refused and the application must be dismissed.  Ground 1 had sufficient merit to justify a grant of leave.  In this circumstance, I would grant an extension of time.  However, as the ground has not been made out, the appeal must be dismissed.

Orders

1. The orders I would make are as follows:

   (1)An extension of time is granted.

   (2)Leave to appeal on ground 2 is refused.

   (3)The application to adduce additional evidence dated 10 May 2021 is dismissed.

   (4)Leave to appeal is granted on ground 1.

   (5)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

TW

Associate to the Honourable Justice Mazza

4 AUGUST 2022