JPH v The State of Western Australia

The appeal is against a conviction for multiple child sex offences committed by the appellant against three boys, JP, CH and ZK, while he was a teacher and principal at a school in the Perth metropolitan area. The appeal was filed about one year out of time. The delay has not been satisfactorily explained. The appeal will proceed on the merits. The appellant complains of the trial judge's failure to direct the jury that the evidence of JC (a student at the school) about conversations he allegedly had with the appellant concerning masturbation could not be used as propensity evidence. The appellant's complaint concerns directions that his Honour should have given, but failed to give. 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. The appellant's argument is that there was a real possibility that impermissible propensity reasoning would creep into the way the jury approached the evidence. The appellant submitted that there was a real possibility that impermissible propensity reasoning would creep into the way the jury approached the evidence. The risk of a jury engaging in propensity or tendency reasoning has been recognised as 'peculiarly strong' in cases involving alleged sex offences. However, the Court was satisfied that 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. 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. The Court orders that the appellant's application for an extension of time within which to appeal is dismissed, the appellant's application in an appeal dated 10 May 2021 for leave to adduce additional evidence in the appeal is dismissed, leave to appeal is refused and the appeal is dismissed.