Karszniewicz v The State of Western Australia - [2020] WASCA 121

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KARSZNIEWICZ -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 121
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   22 MAY 2020
DELIVERED          :   31 JULY 2020
FILE NO/S:   CACR 131 of 2019
BETWEEN:   KRZYSZTOF ANDRZEJ KARSZNIEWICZ
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STAVRIANOU DCJ
File Number            :   IND 786 of 2018

Catchwords:

Evidence - Propensity evidence - Whether evidence of possession of child exploitation material (CEM) has significant probative value in proof that the appellant indecently dealt with and sexually penetrated a girl under the age of 13 years - Where only some of the CEM had significant probative value - Whether trial judge's direction to the jury appropriately confined the permissible use of the CEM

Legislation:

Criminal Code (WA), s 220, s 320(2), s 320(4)
Evidence Act 1906 (WA), s 31A

Result:

Application for an extension of time to appeal granted
Leave to appeal on grounds 2 and 3 granted
Appeal allowed
Judgments of conviction on counts 1 and 2 set aside
A new trial be had on counts 1 and 2

Category: A

Representation:

Counsel:

Appellant	:	B L Nugawela
Respondent	:	L M Fox

Solicitors:

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

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

Auons v The Queen [2010] VSCA 223
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Banks v The State of Western Australia [2018] WASCA 130
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449
DKA v The State of Western Australia [2017] WASCA 44
Flessas v The State of Western Australia [2018] WASCA 210
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338
IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
Johnson v The Queen [2018] HCA 48; (2018) 92 ALJR 1018
La Bianca v The State of Western Australia [2019] WASCA 105
Lilley v The State of Western Australia [2019] WASCA 164
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Mahmood v The State of Western Australia [2009] WASCA 220
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
MNA v The State of Western Australia [2020] WASCA 84
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
R v Bauer [2018] HCA 40; (2018) 92 ALJR 846
R v Dolan (1992) 58 SASR 501
R v GW [2016] HCA 6; (2016) 258 CLR 108
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
Sayed v The Queen [2012] WASCA 17; (2012) 220 A Crim R 236
Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374
The State of Western Australia v Jackson [2019] WASCA 118
Wark v The State of Western Australia [2020] WASCA 19
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

BUSS P:

The appellant appeals against conviction.
The appellant was charged on an indictment dated 20 March 2019 with seven counts.
Count 1 alleged that on an unknown date between 1 January 2017 and 28 March 2017, at a Perth suburb, the appellant indecently dealt with E, a child under the age of 13 years, by placing his hand between her buttocks, contrary to s 320(4) of the Criminal Code (WA) (the Code).
Count 2 alleged that, on the same unknown date and at the same place as in count 1, the appellant sexually penetrated E, a child under the age of 13 years, by penetrating her vagina with his finger, contrary to s 320(2) of the Code.
Count 3 alleged that on an unknown date between 1 January 2014 and 28 March 2017, at a Perth suburb, the appellant indecently dealt with B, a child under the age of 13 years, by rubbing her genital area with his hand, contrary to s 320(4) of the Code.
Count 4 alleged that on a separate unknown date between 1 January 2014 and 28 March 2017, at a Perth suburb, the appellant indecently dealt with B, a child under the age of 13 years, by rubbing her genital area with his hand, contrary to s 320(4) of the Code.
Count 5 alleged that on 5 April 2017, at a Perth suburb, the appellant had in his possession child exploitation material, namely images of children engaged in sexual acts or posed in sexual positions, contrary to s 220 of the Code.
Count 6 alleged that on 5 April 2017, at a Perth suburb, the appellant had in his possession child exploitation material, namely images and video images of children engaged in sexual acts or posed in sexual positions, contrary to s 220 of the Code.
Count 7 alleged that on 5 April 2017, at a Perth suburb, the appellant had in his possession child exploitation material, namely images and video images of children engaged in sexual acts or posed in sexual positions, contrary to s 220 of the Code.
The appellant was convicted, on his pleas of guilty in the District Court, of counts 5, 6 and 7.
After a trial in the District Court before Stavrianou DCJ and a jury, the appellant was convicted of counts 1 and 2 and acquitted of counts 3 and 4.
The appellant requires an extension of time within which to appeal. The appellant's delay in filing his appeal notice was reasonably short and has been fully explained. In the circumstances, I would grant the appellant an extension of time.
At the time of the offending the subject of counts 1, 2, 5, 6 and 7, the appellant was aged 36.
E (the complainant in relation to counts 1 and 2) and B (the complainant in relation to counts 3 and 4) were twin sisters. E and B were friends of the appellant's daughter. At the time of the offending the subject of counts 1 and 2, E was aged 9.
On 13 July 2020, this court ordered that the appellant be released on bail pending the delivery of judgment in the appeal.
Initially, the appellant relied upon four grounds of appeal. However, grounds 1 and 4 were abandoned. The remaining grounds were as follows.
Ground 2 alleges, in essence, that the trial judge erred in law in directing the jury that the child exploitation material, the subject of counts 5, 6 and 7 (in respect of which the appellant had pleaded guilty), had significant probative value, within s 31A of the Evidence Act 1906 (WA), and was admissible in the trial of counts 1 and 2. His Honour's directions occasioned a miscarriage of justice.
Ground 3 alleges, in essence, that, alternatively to ground 2, if the child exploitation material did have significant probative value, within s 31A of the Evidence Act, and was admissible in the trial of counts 1 and 2, his Honour erred in law in failing to give proper directions to the jury as to the permissible use of the child exploitation material in the jury's consideration of counts 1 and 2. His Honour's directions occasioned a miscarriage of justice.
On 16 December 2019, Mazza JA ordered that the application for leave to appeal be referred to the hearing of the appeal.
I am satisfied that the child exploitation material did have significant probative value, within s 31A of the Evidence Act, for a limited purpose, and was admissible in the trial of counts 1 and 2 for that purpose. However, in my opinion, there was a miscarriage of justice at the trial arising from the trial judge's failure to give proper directions to the jury as to the permissible use of the child exploitation material in the jury's consideration of counts 1 and 2.
I would grant leave to appeal on grounds 2 and 3, allow the appeal, set aside the judgments of conviction on counts 1 and 2 and order that there be a new trial of the appellant on counts 1 and 2.

The State's pre‑trial application under s 31A of the Evidence Act

By a pre‑trial application dated 5 October 2018, the State applied for orders, in essence, as follows:
(a)at the trial of the counts involving the alleged offending against E and B, the evidence of each complainant be admitted under s 31A of the Evidence Act in the trial of the counts in respect of the other complainant as propensity evidence, further or alternatively relationship evidence, to demonstrate that the appellant had a sexual interest in young female children and was prepared to act on that sexual interest when circumstances permitted; and
(b)the evidence relating to the child exploitation material be admitted under s 31A of the Evidence Act in the trial of the counts in respect of E and B as propensity evidence to demonstrate that the appellant had a sexual interest in young female children.
On 8 October 2018, the pre‑trial application was heard by Sleight CJDC. Defence counsel did not oppose the application. His Honour made the orders sought by the State and gave reasons as follows:[1]
Well, I've considered the application of the State. The High Court has recently in the decision of R v Bauer [2018] HCA 40 considered similar provisions of section 31A in ‑ that exist in Victoria for the admissibility of tendency evidence. At paragraph 58 of a joint judgment, the High Court stated that in multiple complainant cases, for there to be cross‑admissibility there must be, ordinarily, some feature of or about the offending which links the alleged offences against each complainant.
If however, there is some common feature of or about the offending, the High Court made it clear that it may demonstrate a tendency for the accused to act in a particular way, and that alone would make it significantly probative. At paragraph 59, the judgment stated that where you have a man of mature years having a sexual interest in children and tending to act upon it, that may constitute the common feature sufficient to make it significantly probative.
Counts 1 and 2 involve one complainant and counts [3 and 4] involve another complainant. Both sets of charges involve evidence of a man of mature years having a sexual interest in a child and willing to act upon it. Accordingly, I am satisfied that the evidence on each set of charges is significantly probative against the other set of charges.
Likewise, I'm satisfied that the evidence on counts [5, 6 and 7] again demonstrate, if accepted, a sexual interested [sic] in young children and is, in my opinion, significantly probative of commission of the offences [alleged in counts 1, 2, 3 and 4] on the indictment. Accordingly, I'm satisfied that the criterion of section 31A(2)(a) is satisfied. In relation to each of the cross‑admissibility questions, I'm satisfied that the second criteria [sic] set out in section 31A(2)(b) is also met.
So for those reasons, I'm satisfied that cross‑admissibility exists in terms of the application filed by the State dated 5 October 2018, and I'll make orders in accordance with that application. (emphasis added)
[1] Trial ts 12 ‑ 13.
The orders made by Sleight CJDC were not revisited before or during the trial.

The State's case at the trial in relation to counts 1, 2, 3 and 4

Counts 1 and 2 involved alleged offences committed against E during a single incident. The incident allegedly occurred at the appellant's home after the appellant, E and the appellant's daughter had visited a park. Upon their return to the appellant's home, the two girls had a shower in a bathroom. They were naked. The appellant was in the bathroom with them. He was fully clothed and purporting to assist the girls to wash in the shower. The appellant, while purporting to wash E, put his hand between her buttocks (count 1) and then penetrated her vagina with his finger (count 2).
Counts 3 and 4 concerned alleged offences committed against B. The alleged offending also occurred in a shower at the appellant's home. As to count 3, B gave evidence that the appellant's daughter was present when the offending occurred. During her evidence in chief, B disavowed a statement in her electronically recorded interview that E had also been present. The State alleged that the appellant, while purporting to assist the girls to wash in the shower, rubbed B's genital area with his hand. As to count 4, the alleged offending also occurred in a shower at the appellant's home. After a trip to the beach, B and E had a shower. The State's case was that the appellant, while purporting to help the girls to wash in the shower, rubbed B's genital area with his hand.

The appellant's case at the trial in relation to counts 1, 2, 3 and 4

The appellant gave sworn evidence at the trial. He denied having engaged in the conduct the subject of counts 1 and 2 and the conduct the subject of counts 3 and 4.
The appellant admitted that there was an occasion in early 2017 when he went to a duck pond with his daughter and E. The appellant's daughter and E became wet and dirty. Later, the appellant's daughter and E had a shower at the appellant's home. However, the appellant did not wash or touch his daughter or E.
Similarly, the appellant admitted that there was an occasion in early 2017 when he went to a beach with his daughter and B. Later, the appellant's daughter and B had a shower at the appellant's home. The appellant, at the request of his daughter and B, washed sand from their hair while they were in the shower. However, the appellant did not wash or touch B's body. The appellant denied ever having been alone with B in a bathroom and denied ever having washed or touched B's genital area.

The facts agreed between the appellant and the State at the trial in relation to counts 5, 6 and 7

The facts agreed between the appellant and the State at the trial in relation to counts 5, 6 and 7 were read aloud by the prosecutor in the presence of the jury. Those facts were embodied in a document which was tendered in evidence and became exhibit 6.
The agreed facts are summarised in Mazza and Beech JJA's reasons at [114] ‑ [121] below. It is convenient to reproduce their Honours' summary to assist in understanding my reasons:
During a search of the appellant's home on 5 April 2017, police located and seized three electronic devices that were identified as belonging to the appellant. CEM [or child exploitation material] was stored on each device.
The first device was a desktop computer (count 5) on which the appellant had conducted a significant number of internet searches. The searches fell into three main groups: (1) searches related to children showering and bathing; (2) searches of a pornographic version of the children's series, 'Ben 10'; and (3) searches related to 'naturist/nudism'.
The first group of searches was in the following terms:
Between 29 July 2016 and 1 April 2017 relating to showering and bathing:
5YO+Dad+Shower
Bath+time+kids
Little+girls+in+shower
Bathing+little+non+nude+panties+model
Little+girls+shower+together
Nudist+family+shower
Parents+shower+together
Cute+girls+nude+10Y+bath+time
The third group of searches included, among seven searches, a search of 'Nudist+family+shower'.
For convenience, I will refer to the searches identified in [the two preceding paragrahs] as the 'shower searches'.
CEM was also stored on the desktop computer. There were 13 images that fell into category 1. They were largely images of prepubescent girls, naked and semi‑naked, some with genitalia displayed and some in provocative poses. Two images were taken in water and one image was taken at the beach. The desktop computer also contained category 6 CEM, namely, 78 images from the Ben 10 series and 16 other images, some of which depicted various forms of penetration and masturbation.
The second electronic device, an external hard drive (count 6), contained 93 images that fell into category 1. These images were a series of images of one prepubescent female child, some with her genital area visible, some with the child in provocative poses, and some in which the child uses balloons and a soft toy in sexual poses. Also on the external hard drive, police located approximately 381 images relating to families at naturist camps at the beach and near water. Many images were single frontal photographs of prepubescent girls.
The third electronic device, an iPad (count 7), contained 115 images and one video that fell into category 1. The images were predominately of prepubescent girls, either partially or completely naked, and the focus of the images was predominately on the genital area. Some photos were of naked prepubescent girls in water or at the beach, showing their genitals or posing provocatively. The iPad also contained 23 images, within category 6, depicting cartoons and animated characters, predominantly young children, in sexual activities. Also on the iPad were approximately 104 images of families at naturist camps, many of which contained frontal photographs of nude prepubescent girls. (footnotes omitted)
Category 6 material is material which is not (or does not appear to be) a genuine photograph of or does not feature a real child. The material ordinarily comprises cartoons or animations.

The State's case at the trial in relation to the child exploitation material the subject of counts 5, 6 and 7

The State's case at the trial in relation to the child exploitation material was that the appellant had a sexual interest in prepubescent girls, he acted on that interest to download the material and he acted on that interest to touch E and B in the way that each of them alleged.
The prosecutor submitted that a striking aspect of the appellant's sexual interest in prepubescent girls was that he had a particular fantasy about or interest in prepubescent girls showering or bathing. The prosecutor said in her closing address that the appellant's sexual interest in girls 'includes this fantasy element of water and showering and bathing'. That was 'something that turns him on' and that it was 'important … that these offences occurred within … the context of a shower' (closing ts 7).
The prosecutor asserted that the appellant's possession of the child exploitation material demonstrated that he had a sexual interest in children (including, notably, a particular fantasy about or interest in prepubescent girls showering or bathing), and that the appellant's possession of the material increased the objective probability that the appellant had committed the alleged offences (opening ts 83; closing ts 7 ‑ 8).

The appellant's case at the trial in relation to the child exploitation material

The appellant denied in evidence at the trial that he had a sexual interest in prepubescent girls. He explained his possession of the child exploitation material on the basis that he wanted to make his partner hate him. The appellant was upset because he thought another man was endeavouring to form a relationship with his partner. He downloaded the material because he thought his partner might find it and, if she did, she would leave him.
The appellant said in cross‑examination that he had searched on the internet for words such as 'shower' and 'bath' because 'that is the easiest way to find [pictures of] somebody that's nude'. He denied having a sexual interest in young girls or in children and he denied having a particular interest in young girls or children showering or bathing (ts 210, 212).

The trial judge's directions to the jury in relation to the child exploitation material

The trial judge's directions to the jury in relation to the child exploitation material are set out in Mazza and Beech JJA's reasons at [134] below. I will summarise the critical aspect of his Honour's directions.
His Honour directed the jury that:
(a)The State's case was that the evidence of the child exploitation material demonstrated that the appellant had a sexual interest in children and that the evidence increased the objective probability that the appellant had committed the offences charged (ts 302).
(b)It was open to the jury to consider whether the appellant's possession of the child exploitation material revealed a sexual interest in children (ts 302).
(c)The jury could use the evidence of the appellant's possession of the child exploitation material in the manner suggested by the State if the jury was satisfied beyond reasonable doubt that the appellant had demonstrated a sexual interest in children and was willing to give effect to that interest, tendency or propensity (ts 302).
(d)If the jury was satisfied beyond reasonable doubt that the evidence as to the appellant's possession of the child exploitation material showed that the appellant had the tendency suggested by the State and that the tendency assisted the State's case on the alleged offences, the jury could consider the evidence when the jury was determining whether or not the appellant did commit the alleged offences (ts 302).
(e)It was a matter for the jury to decide whether the appellant had the suggested sexual interest in children and whether that assisted the jury in determining guilt (ts 303).

It is apparent when the trial judge's directions are considered as a whole, and in the context of the State's case and the appellant's case at the trial, that his Honour instructed the jury, in essence, that if the jury was satisfied that the evidence of the child exploitation material demonstrated that the appellant had a sexual interest in children and that the appellant was willing to give effect to that interest, then the jury could consider the evidence of the child exploitation material in deciding whether or not the appellant had committed the charged offences by indecently dealing with E and B, as alleged in counts 1, 3 and 4, and by sexually penetrating E, as alleged in count 2.
Neither the prosecutor nor defence counsel requested his Honour to redirect the jury or give the jury a further direction.

Grounds 1 and 2: the appellant's and the State's submissions

The submissions made by counsel for the appellant and counsel for the State are summarised in Mazza and Beech JJA's reasons at [146] ‑ [153] below. It is unnecessary to repeat their Honours' summary.

Grounds 1 and 2: their merits

Section 31A of the Evidence Act provides:
31A. Propensity and relationship evidence
(1)In this section -
propensity evidence means -
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
The principles relevant to whether propensity evidence has significant probative value, within the meaning of s 31A of the Evidence Act, were summarised in RMD v The State of Western Australia as follows:[2]
[2] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185] (Beech J, Mazza JA relevantly agreeing). See also RMD [50] - [52] (Buss P); La Bianca v The State of Western Australia [2019] WASCA 105 [24] ‑ [26] (Buss P & Mazza JA), [144] (Mitchell JA); NTH v The State of Western Australia [2020] WASCA 22 [108] ‑ [109] (Buss P, Mazza & Beech JJA).
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(2)In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
(3)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of [the] probability of the existence of a fact in issue.
(4)The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.
(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.
(6)If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
(8)The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value. (footnotes omitted)
In The State of Western Australia v Jackson,[3] the following points were made:
First, the term 'propensity evidence', as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence … of a tendency that the accused person has or had'. The word 'conduct', in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a)the evidence is capable of proving the propensity; and
(b)proof of the propensity increases the likelihood of the commission of the offences (Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [41]; McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 [26], [34]; Flessas v The State of Western Australia [2018] WASCA 210 [46]; La Bianca [145]).
Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do' (Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [23]). For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.
Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value (DKA v The State of Western Australia [2017] WASCA 44 [43]; La Bianca [26](f)).
[3] The State of Western Australia v Jackson [2019] WASCA 118 [20] - [23] (Buss P, Mitchell & Beech JJA).
In McPhillamy v The Queen,[4] the appellant was convicted after trial on six counts of sexual offences committed against an 11-year-old boy (A). At the time of the alleged offending the appellant was an acolyte at a cathedral and A was an altar boy who was under the appellant's supervision. The alleged offending occurred in the public toilets of the cathedral. The offences were alleged to have occurred on two separate occasions between 1 November 1995 and 31 March 1996. At the trial two witnesses (B and C) called by the prosecution each gave evidence that in 1985, when each was aged 13, the appellant had committed sexual acts on them when they were boarders at a school and the appellant was an assistant housemaster at the school. B and C had gone to the appellant's bedroom to be comforted when they were homesick. This evidence as to the alleged sexual acts in 1985 was admitted as tendency evidence pursuant to the Evidence Act 1995 (NSW). Section 97(1) of that Act conditions the admission of evidence to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, on the court's assessment that the evidence will, by itself or taken with evidence adduced by the party seeking to adduce it, have 'significant probative value'. The High Court allowed the appellant's appeal on the ground that proof of the 1985 offending was not capable of affecting, to a significant extent, the assessment of the likelihood that the appellant had committed the offences with which he was charged. The reasoning of Kiefel CJ, Bell, Keane and Nettle JJ was, relevantly, as follows:
Proof of the appellant's sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. The tendency on which the prosecution relied was to act on the appellant's sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was confined to 'B's and 'C's evidence of events that occurred in 1985. … [T]here was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against 'A'.
…
… [W]here, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together (Hughes v The Queen (2017) 92 ALJR 52 at [64] per Kiefel CJ, Bell, Keane and Edelman JJ; R v Bauer (a pseudonym) (2018) 92 ALJR 846 at [58]). The suggested link in this case is the appellant's tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over 'A', an altar boy, when the two were at the Cathedral for services in 1995-1996. The evidence does not suggest that 'A' was vulnerable in the way that 'B' and 'C' were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with 'A's account that the appellant followed him into a public toilet and molested him.
'B's and 'C's evidence established no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against 'A' to a significant extent (R v Bauer (a pseudonym) (2018) 92 ALJR 846 at [58]). It rose no higher in effect than to insinuate that, because the appellant had sexually offended against 'B' and 'C' 10 years before, in different circumstances, and without any evidence other than 'A's allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that 'A' alleged. The tendency evidence did not meet the threshold requirement of s 97(1)(b) of the Evidence Act [27], [31], [32]. (original emphasis)
[4] McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045.
If an appellant who has been convicted after trial appeals to this court against his or her conviction on the ground that evidence was wrongly admitted under s 31A or that the admission of the evidence occasioned a miscarriage of justice, the task of this court is to decide for itself:
(a)whether the evidence, either by itself or having regard to other evidence adduced at the trial, had 'significant probative value', within s 31A(2)(a); and
(b)whether the probative value of the evidence compared to the degree of risk of an unfair trial, was such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial, within s 31A(2)(b).
That was the approach taken by the High Court in Stubley v The State of Western Australia[5] and IMM v The Queen.[6]
[5] Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374.
[6] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300.
In other words, on an appeal against conviction after trial, this court determines whether the evidence in question was admissible by reference to the principles enunciated in Warren v Coombes[7] and not by reference to those enunciated in House v The King.[8] See R v Bauer[9] and DKA v The State of Western Australia.[10] In the present case, whether the admission of the evidence relating to the appellant's convictions of counts 5, 6 and 7 occasioned a miscarriage of justice is concerned with the use that was made of the evidence at trial.[11]
[7] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531.
[8] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[9] R v Bauer [2018] HCA 40; (2018) 92 ALJR 846 [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
[10] DKA v The State of Western Australia [2017] WASCA 44 [33] - [34] (Buss P, Mazza JA & Beech J).
[11] McPhillamy [11]; Flessas v The State of Western Australia [2018] WASCA 210 [45] (Buss P, Mazza & Beech JJA); Lilley v The State of Western Australia [2019] WASCA 164 [62] (Buss P, Mazza & Beech JJA).
In Jackson, the respondent was charged on an indictment containing four counts. Each of counts 1 and 2 alleged, in respect of a girl (whom the respondent did not know) who was under the age of 13 years, that on 18 April 2018 the respondent indecently dealt with the girl in a supermarket aisle by touching her on the buttocks. The girls were siblings and the alleged indecent dealings occurred during a single incident when the girls were in close proximity to each other. Count 3 alleged that, on 23 April 2018, the respondent possessed child exploitation material. Count 4 alleged that, on 23 April 2018, the respondent used a carriage service to access child pornography. The child exploitation material comprised pictures of prepubescent girls posing in bathers or underwear.
The case came before this court on an appeal by the State, before trial, against the decision of the primary judge to order separate trials of the indecent dealing charges and the child exploitation and pornography charges. A question arose in Jackson as to whether the evidence relied upon by the State in support of the child exploitation and pornography charges was admissible under s 31A in support of the State's case on the indecent dealing charges. The court held, applying McPhillamy, that the child exploitation and pornography evidence did not have significant probative value for the purpose of proving that the respondent in fact touched the girls on the buttocks. However, the court also held that the evidence did have significant probative value for the purposes of proving that any independently established touching of the buttocks was deliberate and sexually motivated and, accordingly, indecent.
In NTH, the appellant was tried on 18 counts of unlawfully and indecently dealing with a child under the age of 14 years and 5 counts of unlawfully and indecently dealing with a child under the age of 13 years. The 23 counts involved eight complainants. The appellant was convicted of 12 counts, including at least one count relating to each complainant, and was acquitted of the other 11 counts.
The appellant appealed against conviction and sentence. In his appeal against conviction the appellant relied on five grounds. Grounds 4 and 5 complained about aspects of the trial judge's directions to the jury in relation to propensity evidence. The propensity evidence concerned the appellant's previous convictions in 1978 for offences of unlawful and indecent dealing with two of the complainants the subject of the charges in question. The court decided that none of the grounds had been made out. The appeal against conviction was dismissed.
The court held that, having regard to the other evidence adduced by the State at the trial, the 1978 convictions had significant probative value in proof of each of the charges in question of which the appellant was convicted. The reasons for the court arriving at that conclusion were as follows:[12]
Both victims of the 1978 convictions were pre‑adolescent girls. Both were daughters of friends of the appellant; his opportunity for contact with, and to sexually touch, each of them arose from that connection.
These features linked each of the offences of which the appellant was convicted to the conduct and circumstances of the 1978 convictions. Each of the offences of which the appellant was convicted involved the appellant sexually touching, or (in the case of count 19) being sexually touched by, the young pre‑adolescent daughter of a family friend of the appellant. In each case, that family connection provided the occasion for the appellant to be with the complainant and to have the opportunity to commit the offence.
As already noted, s 31A of the Evidence Act expressly requires that regard be had to other evidence adduced or to be adduced in determining whether the propensity evidence would have significant probative value. In considering, for a particular count, whether the 1978 convictions had significant probative value, regard is to be had to the evidence as to all other counts.
The 1978 convictions related to conduct in 1977 and 1978. The offences of which the appellant was convicted occurred over a range of years from 1971 until 1987. The evidence led by the State as a whole supported an overall picture of offending that was occasional, but occurred consistently, over a period of about 15 years. In this respect, the present case differs markedly from the position in McPhillamy, on which the appellant relied heavily.
[12] NTH [114] ‑ [117].
In NTH, the 1978 convictions had significant probative value in proof of each of the charges in question of which the appellant was convicted notwithstanding that, on the State's case as to some of the charged offences, the appellant expressed his sexual interest in pre-adolescent girls who were family friends in different ways, and took advantage of the family connection in different circumstances.
In MNA v The State of Western Australia,[13] the appellant was charged on indictment with four counts of indecently dealing with two female complainants. The complainants, A and B, were the daughters of one of the appellant's friends. The offending against A was alleged to have occurred between 1 August 2016 and 30 November 2016 when A was under the age of 13 years. The offending against B was alleged to have occurred between 1 October 2016 and 31 December 2016 when B was of or over 13 years and under 16 years. After a trial, the appellant was convicted of two of the offences, one relating to each complainant. He was acquitted of the other two offences.
[13] MNA v The State of Western Australia [2020] WASCA 84.
The charged offences in MNA were alleged to have been committed on two separate occasions. On one occasion, the appellant was alleged to have touched A twice on her vaginal area with his hand. On the other occasion, the appellant was alleged to have touched B twice on the side of her breast using his fingers.
The appellant in MNA appealed against his conviction on three grounds. One of the grounds alleged that the appellant's prior convictions on 3 July 2014, on two charges of using electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity, should not have been admitted at the trial under s 31A as propensity evidence. That ground also alleged that, in any event, the trial judge had erred in law in directing the jury that the prior convictions had significant probative value in relation to acting or allegedly acting on his sexual attraction to underage girls by touching them indecently whenever the opportunity arose. The court held that this ground was not established to the extent that it contended that the propensity evidence was inadmissible. However, the ground was established to the extent that it contended that the trial judge erred in directing the jury as to the manner in which they could use the propensity evidence.

The evidence of the appellant's prior convictions was adduced at the trial by the prosecutor reading aloud to the jury an agreed statement of facts. The agreed statement of facts, as read, was as follows:
On 3 July 2014 in the Perth District Court, the [appellant] was convicted following his pleas of guilty to two charges, namely that, being an adult, he used electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity.
The facts of those convictions were that on two occasions the [appellant] chatted online through social media sites with a person purporting to be a 13-year-old girl. This person was, in fact, a police officer who was posing as a 13-year-old girl.
The [appellant] chatted from his home computer at his house ... The first communication was on Wednesday, 13 November 2013 through the social networking site ICQ.
When the [appellant] first communicated with the police officer posing as a child, that person told the [appellant] that she was 13 years old and she would be 14 years old in December of that year, and that she was in year 8.
A phone call was later made by the police officer posing as a child to the [appellant] who gave his mobile phone number over the chat. This phone call was in order to confirm that she was a girl.
Later that night, the [appellant] asked the officer posing as a child via the chat room if she had hair on her vagina. She replied, 'I don't have much, no'. He then asked her if she had ever fingered it.
A little later that night, the [appellant] told the child persona that he shouldn't chat with her in that manner because she was only aged 13, and it was wrong to ask her about her private parts. He told her that he had never asked a girl her age about such things before, and that he should not be doing it.
The [appellant] continued to chat with the child persona. He told her that he had gotten hard, and that he wanted to think about her vagina. He asked the child persona if she had ever fingered her vagina, and told her that he would love to finger her vagina.
The [appellant] then asked if they could talk about it on the phone. The [appellant] then told her that she was too young, and asked her not to text back. The [appellant] did not initiate any further contact with the child persona.
Approximately three weeks later, on 4 December 2013, the police officer posing as a child contacted the [appellant] through the internet social network site Skype and asked whether she could add him as a contact.
During this chat conversation, the [appellant] asked the child persona to tell him about her boobs, and asked if she was flat or a handful.
The [appellant] talked in a sexually explicit manner and asked her if she had masturbated. He later asked her to remove her underwear, saying, 'I want to talk to you with no underwear on because I want to think about your pussy'. After speaking on this occasion the [appellant] did not contact the officer posing as a child again.
On 6 January 2014, the [appellant] was arrested at his home address. The [appellant] voluntarily spoke to police in a recorded interview and made full admissions to having the Internet conversations with the police officer who was posing as a child. (original emphasis)
The nature of the communications between the appellant and the police officer on 4 December 2013 was typewritten only. The appellant and the police officer could not see or hear each other.
Mitchell JA and I held that the propensity evidence had significant probative value as to whether any actual contact by the appellant with A (a 12 year old girl) in the vaginal area and with B (a 14 year old girl) in the breast area, if independently established by other evidence, was deliberate and sexually motivated. The evidence of the appellant's prior convictions was admissible on the basis that it had significant probative value to that issue. However, Mitchell JA and I were of the opinion that the evidence of the appellant's prior convictions was not admissible for the purpose of proving that the alleged contact actually occurred.
Mitchell JA and I accepted that the evidence of the appellant's conduct with the child persona was relevant to the issue of whether the appellant touched A and B in the manner alleged by the State. However, the question was not whether the evidence was relevant, but whether the evidence had sufficient importance to give it significant probative value in relation to whether the appellant actually touched A and B as alleged. The reasons of Mitchell JA and I for concluding that the evidence did not have significant probative value in relation to the question of actual touching were as follows:
In the present case the propensity was left to the jury at a very high level of generality. The propensity contended for by the State, and the subject of the trial judge's direction, was a tendency 'to have a sexual interest in young teenage girls and give effect to that when the opportunity arose'. If the propensity is characterised in that very general way, without specifying the manner in which the appellant acted on his sexual interest, it does not provide significant support for a finding that the appellant acted on that sexual interest by touching the complainants.
A more particular description of the propensity demonstrated by the evidence was the appellant's tendency to express his sexual attraction to girls of about the complainants' age in electronic communications. That description identifies the manner in which the appellant had previously acted on his sexual interest. It reflects the fact that the appellant's conduct with the child persona did not involve touching at all and did not establish a tendency to indecently touch girls of about the complainants' age. But describing the tendency in these more specific terms - which does not involve touching - highlights the difficulty in concluding that the evidence had significant probative value in relation to the issue of whether the appellant touched the complainants.
In our view, in the circumstances of the present case, differences between the appellant's conduct with the child persona and that alleged against the complainants precludes a conclusion that evidence of the prior conduct had significant probative value in relation to the issue of whether touching of the complainants occurred. The conduct with the child persona did not involve touching at all. The propensity demonstrated by the evidence was the appellant's tendency to express his sexual attraction to girls of about the complainants' age in electronic communications. The propensity evidence did not establish a tendency of the appellant to touch girls of about the complainants' age. The tendency to express sexual attraction in electronic communications did not have sufficient importance to the rational assessment of whether the appellant touched the complainants to give it significant probative value in relation to that issue.
Therefore, the present case falls into the same category as Jackson. The evidence of the appellant's prior convictions did not have significant probative value on the issue of whether the appellant in fact physically touched or dealt with the complainants as alleged. However, if the jury were satisfied that the appellant did in fact physically touch or deal with the complainants as alleged, then the propensity evidence had significant probative value in relation to whether the touching or dealing may have been innocent and accidental, rather than deliberate and sexually motivated.
Because the propensity evidence was admissible for a limited purpose, it was incumbent on the trial judge to direct the jury on the permissible limits of the use of the evidence. The jury in the present case should have been given a direction to the effect that they could not have regard to the propensity evidence in determining whether, and in what manner, the appellant touched A in the groin area or touched B on the breast. That is, the jury should have been given a direction to the effect that they could only have regard to the evidence of the appellant's past convictions if other evidence satisfied them, beyond reasonable doubt, that the alleged touching occurred. In that event, the jury could be directed that:
(1)If the jury were satisfied beyond reasonable doubt that the alleged touching occurred, they must then determine whether they are satisfied beyond reasonable doubt that the touching was deliberate and indecent.
(2)It was open to the jury, should they so decide, to find that the evidence of the appellant's prior convictions is evidence that he had a sexual interest in girls of about the complainants' age.
(3)Should the jury so find, it was open to the jury to take into account the existence of the sexual interest together with all other relevant evidence (including the evidence as to the facts and circumstances of the appellant's prior convictions) which the jury accepts, in deciding whether they are satisfied beyond reasonable doubt that the touching of the complainants occurred deliberately and had a sexual character, so as to be indecent.
The absence of a direction identifying the limits of the permissible use of the propensity evidence gave rise to a miscarriage of justice in all the circumstances of this case [87] ‑ [92]. (footnote omitted)
A summary of the facts agreed between the appellant and the State at the trial in relation to counts 5, 6 and 7 is set out at [31] above. None of the child exploitation material depicted children or young girls being indecently dealt with or sexually penetrated in the context of showering or bathing. The only child exploitation images which depicted any forms of sexual penetration or masturbation were some animations within the category 6 material.
I am satisfied that the whole of the evidence relating to the appellant's convictions of counts 5, 6 and 7 (including the searches and the appellant's possession of the child exploitation material) was 'evidence of the conduct of' the appellant (within par (a) of the definition of 'propensity evidence' in s 31A(1)) and evidence of an inclination or predisposition that the appellant had (that is, evidence of 'a tendency' that he had within par (b) of the definition of 'propensity evidence' in s 31A(1)).
The whole of the evidence relating to the appellant's convictions of counts 5, 6 and 7 was evidence of the appellant's inclination or predisposition to have a sexual interest in prepubescent girls.
Part of the evidence relating to the appellant's convictions of counts 5, 6 and 7 (in particular, the shower searches and the child exploitation material that related to or was connected with prepubescent girls showering or bathing) was evidence of a more specific inclination or predisposition, namely the appellant's inclination or predisposition to have a sexual interest in prepubescent girls in the context of showering or bathing.
I consider that the whole of the evidence relating to the appellant's convictions of counts 5, 6 and 7 demonstrated the appellant's tendency to manifest his sexual attraction to prepubescent girls by searching for material of that kind on the internet and by downloading and retaining possession of material of that kind.
Similarly, I consider that the part of the evidence relating to the appellant's convictions of counts 5, 6 and 7 which comprised the shower searches and the child exploitation material that related to or was connected with prepubescent girls showering or bathing demonstrated the appellant's tendency to manifest his sexual attraction to prepubescent girls, in the context of showering or bathing, by searching for material of that kind on the internet and by downloading and retaining possession of material of that kind.
However, in my opinion, none of the evidence relating to the appellant's convictions of counts 5, 6 and 7 established that the appellant had a tendency to manifest his sexual attraction to prepubescent girls, in the context of showering or bathing or otherwise, by touching or sexually penetrating prepubescent girls, either in the manner in which the appellant allegedly touched and sexually penetrated E (as pleaded in counts 1 and 2) or otherwise.
Further, in my opinion, none of the evidence relating to the appellant's convictions of counts 5, 6 and 7 establish that the appellant had a tendency to manifest his sexual attraction to prepubescent girls, in the context of showering or bathing, by viewing other people touching or sexually penetrating prepubescent girls, either in the manner in which the appellant allegedly touched and sexually penetrated E (as pleaded in counts 1and 2) or otherwise.
As Mitchell JA and I observed in MNA [85], the High Court's decision in McPhillamy, and the judgment of Kiefel CJ, Bell, Keane and Edelman JJ in Hughes v The Queen,[14] indicate that an allegation by an accused that a child has fabricated a complaint of sexual assault, combined with evidence that the accused has demonstrated a sexual interest towards another child, is not generally sufficient to give the evidence of the accused's sexual interest significant probative value. Rather, it is the accused's sexual interest in children, together with the accused's tendency to act on that interest, which is likely to be influential in determining whether the reasonable possibility that the child has fabricated his or her complaint has been excluded.
[14] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338.
In the present case, the whole of the evidence relating to the appellant's convictions of counts 5, 6 and 7 was relevant to the issue of whether the appellant had touched or sexually penetrated E as alleged by the State. However, neither the whole of that evidence, nor the part of that evidence which comprised the shower searches or which related to or was connected with prepubescent girls showering or bathing, had significant probative value in relation to whether the appellant actually touched or actually sexually penetrated E. The evidence of the searches and the appellant's possession of the child exploitation material revealed that the appellant's conduct involved searching for material of that kind on the internet and downloading and obtaining possession of material of that kind. However, as I have mentioned, none of the child exploitation material depicted children or young girls being indecently dealt with or sexually penetrated in the context of showering or bathing. The only child exploitation images which depicted any forms of sexual penetration or masturbation were some animations within the category 6 material. Although the evidence was significantly probative of the appellant's sexual attraction to prepubescent girls, especially in the context of showering or bathing, the evidence was not significantly probative of the appellant having an inclination or predisposition to indecently touch or to sexually penetrate prepubescent girls, either in the context of showering or bathing or otherwise.
In my opinion, having regard to all the circumstances of the case, including other evidence adduced by the State at the trial, the differences between the appellant's conduct, inclination and predisposition, as manifested by the evidence relating to the appellant's convictions of counts 5, 6 and 7, on the one hand, and the appellant's alleged conduct in relation to E as charged in counts 1 and 2, on the other, precludes the conclusion that the whole or some part of the evidence relating to the appellant's convictions of counts 5, 6 and 7 had significant probative value in relation to whether the appellant actually touched or actually sexually penetrated E as alleged by the State.
The present case is analogous to Jackson and MNA.
Although the evidence relating to the appellant's convictions of counts 5, 6 and 7 did not have significant probative value on the issue of whether the appellant actually touched or actually sexually penetrated E as alleged, some of the evidence did have significant probative value for other purposes.
If the jury was satisfied, on the basis of other evidence (that is, on the basis of evidence that was not propensity evidence), that the appellant had actually touched or had actually sexually penetrated E as alleged, the part of the evidence relating to the appellant's convictions of counts 5, 6 and 7 which comprised the shower searches or which related to or was connected with prepubescent girls showering or bathing had significant probative value in relation to:
(a)whether the touching or the penetration may have been unintentional or accidental; and
(b)whether the touching or the penetration was deliberate and motivated by the appellant's sexual attraction to prepubescent girls in the context of showering or bathing.
I consider that the probative value of the part of the evidence relating to the appellant's convictions of counts 5, 6 and 7 which comprised the shower searches or which related to or was connected with prepubescent girls showering or bathing, compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
I am therefore of the opinion that the part of the evidence relating to the appellant's convictions of counts 5, 6 and 7 which comprised the shower searches or which related to or was connected with prepubescent girls showering or bathing was admissible in evidence under s 31A for the purposes I have identified at [75] above.
Ground 2 has been made out in part. Some of the evidence relating to the appellant's convictions of counts 5, 6 and 7 was admissible under s 31A, but the balance of that evidence was inadmissible. Defence counsel's failure to object to the admission of the inadmissible evidence is not explicable on the basis that defence counsel was pursuing a rational forensic strategy. The admission of the inadmissible evidence occasioned a miscarriage of justice.
In R v Dolan,[15] King CJ (Mullighan J agreeing) observed:
In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is encumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put.
See also Auons v The Queen.[16]
[15] R v Dolan (1992) 58 SASR 501, 503.
[16] Auons v The Queen [2010] VSCA 223 [63] (Bongiorno JA; Buchanan JA & Habersberger AJA agreeing).
In Johnson v The Queen,[17] Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ said:
There is seldom as much risk of a jury reasoning improperly from uncharged act context evidence than reasoning improperly from charged act evidence; especially where … the jury is carefully directed as to the limited purpose for which the uncharged act evidence is adduced and that the jury must not find the accused guilty of a charged act unless satisfied beyond reasonable doubt, on the evidence relating to that charge, that the accused is guilty of that charge. (emphasis added)
[17] Johnson v The Queen [2018] HCA 48; (2018) 92 ALJR 1018 [20].
In that passage, their Honours were assessing the risk that a jury may make improper use of uncharged act context evidence compared to charged act evidence. Their Honours concluded, in effect, that there will seldom be as much risk of a jury reasoning improperly from uncharged act context evidence compared to charged act evidence, particularly where the jury are given a direction of the kind mandated by King CJ in Dolan (503) and the jury are directed that they must not find the accused guilty of a charged act unless satisfied beyond reasonable doubt, on the evidence relating to that charge, that the accused is guilty of that charge.

In the present case, the trial judge was bound to direct the jury that:
(a)The part of the evidence relating to the appellant's convictions of counts 5, 6 and 7 which comprised the shower searches or which related to or was connected with prepubescent girls showering or bathing must not be taken into account by the jury in determining whether the appellant had actually touched or had actually sexually penetrated E as alleged by the State.
(b)If, however, the jury was satisfied, on the basis of other evidence (that is, on the basis of evidence that was not propensity evidence) that the appellant had actually touched or had actually sexually penetrated E as alleged, then the part of the evidence referred to at [82(a)] above could be taken into account by the jury for the purposes I have identified at [75] above.
Unfortunately, his Honour (who was not relevantly assisted by the prosecutor or defence counsel) did not direct the jury in that manner. Defence counsel's failure to request a redirection or a further direction

is not explicable on the basis that defence counsel was pursuing a rational forensic strategy. His Honour's misdirection occasioned a miscarriage of justice.

Ground 3 has been made out.
Counsel for the State did not submit (and it could not reasonably have been submitted) that the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) should be applied.

Conclusion

The appellant's application for an extension of time within which to appeal should be granted. I would grant leave to appeal on grounds 2 and 3. The appeal should be allowed, the judgments of conviction on counts 1 and 2 should be set aside and a new trial of the appellant should be had on counts 1 and 2.

MAZZA & BEECH JJA:

Introduction

The appellant was charged on an indictment containing seven charges. He was convicted, after trial, of one count of indecently dealing with a child under the age of 13 years (count 1) and one count of sexual penetration of a child under the age of 13 years (count 2). The appellant was acquitted of two further counts of indecently dealing with a child under the age of 13 years (counts 3 and 4). The complainant for counts 1 and 2 (E) is the twin sister of the complainant for counts 3 and 4 (B). E and B were friends of the appellant's daughter. The appellant was also convicted, on his pleas of guilty, of three counts of possession of child exploitation material (CEM) (counts 5 ‑ 7).
The State's case at trial was that the appellant committed counts 1 ‑ 4 in three separate incidents while the complainant was showering at the appellant's house, during the course of sleepovers with the appellant's daughter, and under the guise of helping her wash. At trial, the appellant denied committing the acts the subject of counts 1 ‑ 4.

The appellant appeals against his convictions on counts 1 and 2 on two grounds.[18] Both concern propensity evidence admitted, under s 31A of the Evidence Act1906 (WA), without objection from the appellant at trial. Evidence as to facts and circumstances relating to his convictions on counts 5 ‑ 7, involving possession of CEM, was admitted as propensity evidence on counts 1 ‑ 4. The appellant contends, by ground 2, that evidence relating to his convictions on counts 5 ‑ 7 was inadmissible in the trial of counts 1 and 2. He further contends, by ground 3, that the judge's failure to give adequate direction as to the permissible use of the convictions on counts 5 ‑ 7 occasioned a miscarriage of justice.
[18] There were four grounds of appeal in the appellant's case as filed, but he abandoned grounds 1 and 4 at the hearing of the appeal.
For the reasons that follow, we would uphold ground 3, and ground 2 in part, and the appeal, and order a retrial. In summary, that is because:
(1)only a very limited part of the facts relating to the CEM convictions, namely some of the internet searches that produced the CEM the subject of count 5, had significant probative value in proving that the appellant did the acts the subject of counts 1 and 2; and
(2)the general terms in which the judge's direction was expressed meant that there was a perceptible risk that the jury might use the convictions on the CEM offences more broadly in an impermissible manner.
It is convenient to outline the course of the State's application under s 31A of the Evidence Act and the parties' cases at trial to provide context for consideration of the admissibility and permissible use(s) of the propensity evidence.

The s 31A application

When originally filed, the State's s 31A application (dated 24 July 2018) was in the following terms:
In any trial on Indictment 786 of 2018, the evidence of each complainant constituting an offence the subject of counts 1 and 2 and counts 3 to 5[[19]] respectively be admissible under s 31A of the Evidence Act 1906 in the trial of the counts in respect of the other complainant as propensity and/or relationship evidence to demonstrate that the accused had a sexual interest in young female children and his preparedness to act on that sexual interest when circumstances permitted.
And that the evidence of each complainant constituting an offence the subject of counts 1 to 5 on the indictment be admissible under s 31A of the Evidence Act 1906 in the trial of counts 6 to 8, as propensity evidence to demonstrate that the accused had a sexual interest in young female children.
[19] At the time of this application, the indictment contained a third charge of indecent dealing against B (former count 5). Thus, counts 1 ‑ 2 (which pertained to E) were as explained above, counts 3 ‑ 5 were three indecent dealing counts against B, and counts 6 ‑ 8 were the three CEM charges. Former count 5 was removed from the indictment by an application dated 20 March 2019.
At a pre‑trial hearing on 27 July 2018:
(1)The application was unopposed.[20]
(2)The State said that the second paragraph was incorrect in that it should have been in the 'reverse'; the State should have applied for the evidence on counts 6 ‑ 8 to be admissible in the trial of counts 1 ‑ 5.[21]
[20] ts 3, 6.
[21] ts 7.
The State made a second s 31A application, dated 5 October 2018, which replaced the July application. The first paragraph of the October application was the same as the first paragraph of the July application. However, the second paragraph was amended to correct the error identified above. In the October application, the second paragraph read as follows:
And that the evidence pertaining to counts 6, 7 and 8 on the indictment (comprising viva voce evidence or agreed facts, as the case may be) be admissible under s 31A of the Evidence Act 1906 in the trial of counts 1 to 5, as propensity evidence to demonstrate that the accused had a sexual interest in young female children.
At a pre‑trial hearing before the Chief Judge on 8 October 2018, the October application was unopposed.[22]
[22] ts 11 ‑ 12.
The judge granted the application. His Honour's reasons were as follows:[23]
Well, I've considered the application of the State. The High Court has recently in the decision of R v Bauer [2018] HCA 40 considered similar provisions of section 31A in ‑ that exist in Victoria for the admissibility of tendency evidence. At paragraph 58 of a joint judgment, the High Court stated that in multiple complainant cases, for there to be cross‑admissibility there must be, ordinarily, some feature of or about the offending which links the alleged offences against each complainant.
If however, there is some common feature of or about the offending, the High Court made it clear that it may demonstrate a tendency for the accused to act in a particular way, and that alone would make it significantly probative. At paragraph 59, the judgment stated that where you have a man of mature years having a sexual interest in children and tending to act upon it, that may constitute the common feature sufficient to make it significantly probative.
Counts 1 and 2 involve one complainant and counts 3 to 5 involve another complainant. Both sets of charges involve evidence of a man of mature years having a sexual interest in a child and willing to act upon it. Accordingly, I am satisfied that the evidence on each set of charges is significantly probative against the other set of charges.
Likewise, I'm satisfied that the evidence on counts 6, 7 or 8 again demonstrate, if accepted, a sexual interested [sic] in young children and is, in my opinion, significantly probative of commission of the offences 1 to 5 on the indictment. Accordingly, I'm satisfied that the criterion of section 31A(2)(a) is satisfied. In relation to each of the cross‑admissibility questions, I'm satisfied that the second criteria set out in section 31A(2)(b) is also met.
So for those reasons, I'm satisfied that cross‑admissibility exists in terms of the application filed by the State dated 5 October 2018, and I'll make orders in accordance with that application. (emphasis added)
[23] ts 12 ‑ 13.
We turn to outlining the parties' cases at trial.

The State case

The State case may be summarised as follows.
The appellant and his partner lived with their daughter and their son.[24] His daughter was born in 2007.[25] The complainants, who are twin sisters,[26] were also born in 2007.[27] The appellant's daughter and the complainants had been friends since they were in pre‑primary school.[28] The complainants, either together or separately, regularly went to the appellant's house to play with his daughter and they would occasionally stay overnight at the appellant's house.[29]

Counts 1 and 2

[24] ts 79.

[25] ts 136.

[26] ts 119.

[27] ts 119; exhibits 1, 2.

[28] ts 121.

[29] ts 79 ‑ 80.

The offences the subject of counts 1 and 2 occurred on the same occasion.
In early 2017,[30] the appellant took his daughter and E to a park. The children cleaned rubbish out of a duck pond and became wet and dirty. Before leaving the park, the children removed their dirty clothes and the appellant provided them some of his spare work clothes to cover themselves during the car ride to the appellant's house.[31]
[30] ts 284 ‑ 285.
[31] ts 26 ‑ 27, 28, 80.
At the appellant's house, the appellant told his daughter and E to have a shower in the ensuite to his bedroom.[32] Both girls went, naked, into the shower and the appellant started washing both of them.[33] E's evidence was that the appellant turned on the water in the shower, squatted by the shower and watched her and his daughter.[34] The appellant then put soap on his hands and began washing E first, before also washing his daughter.[35] He washed their bodies, including their 'private parts'.[36]
[32] ts 80.
[33] ts 80.
[34] ts of closings 11.
[35] ts 29.
[36] ts 80.
While washing E, the appellant put his finger inside her buttocks and rubbed it (count 1).[37] Then, while he still had soap on his hands, the appellant put his fingers into E's vagina, which caused her vagina to sting and hurt (count 2).[38]
[37] ts 23, 80, 284.
[38] ts 24, 80, 284.
There was recent complaint evidence for counts 1 and 2. Specifically, E told a school friend that the appellant put his fingers in her private parts to clean her while she was having a shower at the appellant's house.[39]
[39] ts 83, 293.
In opening, the State observed that the real issue in relation to both counts 1 and 2 was: 'did it happen?'[40] In keeping with this, in closing, the State commented that count 1 ‑ the indecent dealing ‑ was alleged to have occurred in the same event as count 2 ‑ the sexual penetration. Accordingly, if the jury were to find that count 2 is established, and if they were to find that the appellant dealt with the complainant by touching her between the buttocks, then the jury should not have any difficulty in concluding that that dealing was a sexualised touching and was, therefore, 'indecent'.[41]

Count 3

[40] ts 85; see also ts 282, where the judge made a similar observation.

[41] ts of closings 6, 15.

On the indictment, count 3 was said to have occurred on a date unknown between 1 January 2014 and 28 March 2017.[42] However, at trial, the State case was that count 3 occurred in early 2017.[43]
[42] GBAB 1.
[43] ts of closings 7.
The State case was that this offence also occurred while the complainant, B, was in the shower with the appellant's daughter.[44] During her pre‑recorded interview, B said that E was also in the shower. However in her pre‑recorded evidence she said that in E was not there.[45] In the course of washing B, the appellant rubbed her private part, which the State said meant her vagina.[46]

Count 4

[44] ts 82.

[45] ts 42.

[46] ts 82.

Count 4 was said to be a historical event which happened when B was 7 or 8 years old.[47] The State's case was that B was showering alone at the appellant's house in the main bathroom (not the ensuite bathroom to the appellant's bedroom).[48] B's evidence is that she had already washed her body and her hair when the accused came into the bathroom and told her she had to wash her body.[49] B told him that she had already done so.[50] Nevertheless, the appellant began washing her body, including her private part.[51]
[47] ts of closings 25; see also ts of closings 24.
[48] ts 82.
[49] ts 82.
[50] ts 82.
[51] ts 82.
The State conceded in closing that whether the dealing the subject of count 4 was 'indecent' was 'more [of] a live issue'.[52] The State said that touching the genitals of a 7‑year‑old or 8‑year‑old girl, in the process of showering, and without any sexual inclination, is not indecent.[53] The State had earlier submitted that all families are different and, depending on the circumstances, it is not necessarily inappropriate for an adult to wash a child or for an adult to shower with their child.[54]
[52] ts of closings 7.
[53] ts of closings 7.
[54] ts of closings 5 ‑ 6.

The defence case

The defence case as to counts 1 and 2 was, in essence, a denial of any touching of E in the shower. On the defence case, there was a day in early 2017 on which the appellant took his daughter and E to a duck pond. The children became wet and dirty after playing in the pond and they had a shower once they returned to the appellant's house. However, the appellant never washed or touched either child.[55]
[55] ts 190.
The defence case as to counts 3 and 4 was also a denial that he touched B while she was in the shower. On the defence case, there was a day in early 2017 when the appellant took his daughter and B to the beach. His daughter and B had a shower when they returned from the beach. During that shower, both his daughter and B asked him to wash the sand from their hair and he did so. However, he did not wash or touch B's body.[56] The appellant also denied count 4 in that he denied that he had ever been alone with B in a bathroom and denied ever touching her genital area or any part of her body.[57]
[56] ts 200.
[57] ts 207, 225 ‑ 226.
In closing, defence counsel submitted to the jury that they should not be satisfied beyond reasonable doubt as to B's account. He submitted that B's evidence was simply not reliable and that there were internal inconsistencies in her account of the events.[58] Defence counsel also submitted that, even if the dealings the subject of counts 3 and 4 had occurred, they may not have been 'indecent'.[59]
[58] ts of closings 29, 32, 38.
[59] ts of closings 28.

The agreed facts relating to the CEM convictions

The agreed[60] facts of the CEM convictions were read out by the prosecutor during the trial[61] and became exhibit 6.[62] They may be summarised as follows.
[60] ts 174 ‑ 175.
[61] ts 175 ‑ 179.
[62] GBAB 190 ‑ 193.
During a search of the appellant's home on 5 April 2017, police located and seized three electronic devices that were identified as belonging to the appellant. CEM was stored on each device.[63]
[63] GBAB 190.
The first device was a desktop computer (count 5) on which the appellant had conducted a significant number of internet searches. The searches fell into three main groups: (1) searches related to children showering and bathing; (2) searches of a pornographic version of the children's series, 'Ben 10'; and (3) searches related to 'naturist/nudism'.[64]
[64] GBAB 190 ‑ 191.
The first group of searches was in the following terms:[65]
Between 29 July 2016 and 1 April 2017 relating to showering and bathing:
5YO+Dad+Shower
Bath+time+kids
Little+girls+in+shower
Bathing+little+non+nude+panties+model
Little+girls+shower+together
Nudist+family+shower
Parents+shower+together
Cute+girls+nude+10Y+bath+time
[65] GBAB 190.
The third group of searches included, among seven searches, a search of 'Nudist+family+shower'.
For convenience, we will refer to the searches identified in [116] and [117] as the 'shower searches'.
CEM was stored on the desktop computer. There were 13 images that fell into category 1. They were largely images of prepubescent girls, naked and semi‑naked, some with genitalia displayed and some in provocative poses. Two images were taken in water and one image was taken at the beach. The desktop computer also contained category 6 CEM, namely, 78 images from the Ben 10 series and 16 other images, some of which depicted various forms of penetration and masturbation.[66]
[66] GBAB 191.
The second electronic device, an external hard drive (count 6), contained 93 images that fell into category 1. These images were a series of images of one prepubescent female child, some with her genital area visible, some with the child in provocative poses, and some in which the child uses balloons and a soft toy in sexual poses. Also on the external hard drive, police located approximately 381 images relating to families at naturist camps at the beach and near water. Many images were single frontal photographs of prepubescent girls.[67]
[67] GBAB 192.
The third electronic device, an iPad (count 7), contained 115 images and one video that fell into category 1. The images were predominately of prepubescent girls, either partially or completely naked, and the focus of the images was predominately on the genital area. Some photos were of naked prepubescent girls in water or at the beach, showing their genitals or posing provocatively. The iPad also contained 23 images, within category 6, depicting cartoons and animated characters, predominantly young children, in sexual activities. Also on the iPad were approximately 104 images of families at naturist camps, many of which contained frontal photographs of nude prepubescent girls.[68]
[68] GBAB 193.

The parties' submissions at trial concerning the propensity evidence

The State

The State's case was that the appellant's possession of CEM demonstrated that he had a sexual interest in prepubescent girls[69] and, within that sexual interest, he had a particular fantasy about, or interest in, prepubescent girls showering or bathing.[70] In closing, the State drew a connection between that fantasy and the offending conduct:[71]
And that [sexual] interest [in prepubescent girls], as I say, particularly includes this fantasy element of water and showering and bathing, that that's something that turns him on. And we say that it's important that when one looks at it that these offences occurred within that actual context, within the context of a shower.
[69] ts 83, 224; ts of closings 3.
[70] ts 210, 224; ts of closings 3.
[71] ts of closings 7.
The State said that the appellant acted on his sexual interest in young girls in more than one way, namely, by downloading the CEM and by touching the complainants.[72]
[72] ts of closings 3.
In her opening address, the prosecutor said:[73]
But what the State says is that the possession of this child exploitation material by [the appellant] demonstrates that he has a sexual interest in prepubescent girls, and that you can use this evidence of his sexual interest in prepubescent girls to conclude that [the appellant] is someone who would be more likely to have committed the four offences that you come to decide. (emphasis added)
[73] ts 83.

This court upheld the State's appeal against that decision. The court concluded that the conduct the subject of counts 3 and 4 had significant probative value in determining whether the touching of each complainant's buttocks, if independently established, was deliberate and sexually motivated.[91] However, the court found that the evidence on counts 3 and 4 did not have significant probative value in determining whether the respondent had made the contact alleged by counts 1 and 2. In that regard, the court reasoned as follows:[92]
[91] The State of Western Australia v Jackson [62], [65].
[92] The State of Western Australia v Jackson [73] ‑ [76].
However, we do not consider that the evidence on counts 3 and 4 has significant probative value in determining whether the respondent made the contact alleged by counts 1 and 2. The mere fact that an accused has a sexual interest in persons in the same class as the complainant is not usually of significant probative value in determining whether the complainant's account of the accused's conduct is true. That is so even where the sexual interest is manifested in offending against multiple complainants, where something more, a linking or common feature between the offending, is required. As noted in the unanimous judgment of the High Court in Bauer:
In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true. (footnotes omitted)
A common feature linking offending involving the possessing and accessing of child exploitation material and offending involving physical contact with children is difficult to discern in the present case.
The State submits that:
(1)The evidence on counts 3 and 4 reveals that the respondent had a sexual interest in girls aged in the region of 8 ‑ 13 years at a time proximate to the offences the subject of counts 1 and 2.
(2)The honesty and reliability of the evidence of the complainants are of critical significance to the jury's evaluation of the respondent's guilt on counts 1 and 2.
(3)In evaluating the honesty and reliability of the complainants' evidence, the jury is entitled to have regard to the improbability of the apparent coincidence that the respondent had a sexual interest as described above at a time when, on the complainants' evidence, the respondent acted in the manner alleged in counts 1 and 2.
These submissions do not persuade us that the evidence relating to counts 3 and 4 has significant probative value in determining whether the respondent engaged in the conduct alleged in counts 1 and 2. That is so for two reasons. First, to our minds, the contention in [75](3) does not carry sufficient weight to sustain a conclusion that the probative value of the propensity evidence to establish that the respondent engaged in contact is properly described as significant. Secondly, in our view, such reasoning, if permissible, could equally be invited in any case where the alleged propensity evidence consisted of one or more earlier acts of inappropriate sexual contact with a different victim in a class (such as young girls) to which the complainant also belongs. However, in such a context, to so reason would seem to us to be contrary to what was said by the High Court in Bauer and in McPhillamy, which requires more than the existence of a sexual interest in persons of a class of which the complainant is a member to be significantly probative of sexual misconduct against a complainant. See [63] and [73] above.

The parties' submissions

The appellant acknowledges that, in some cases, evidence that an accused possessed CEM may have significant probative value in relation to whether a dealing (that is independently proven to have occurred) was 'indecent'.[93] However, he submits that his CEM convictions did not have significant probative value in relation to whether he physically dealt with or sexually penetrated the complainants.[94] The trial judge erred by misdirecting or inadequately directing the jury in this regard (ground 3). In particular, the judge failed to clearly articulate the uses to which the jury may and may not put the CEM convictions.[95] The appellant relies heavily on The State of Western Australia v Jackson in support of these submissions.
[93] Appellant's submissions [22].
[94] Appellant's submissions [21].
[95] Appellant's submissions [21], [25] ‑ [26].
The respondent seeks to distinguish this case from The State of Western Australia v Jackson. The respondent explains that, in The State of Western Australia v Jackson, the offender's CEM convictions did no more than establish that he had a sexual interest in girls of a certain age range. By contrast, the appellant's CEM convictions go beyond this.[96]
[96] Respondent's submissions [25] ‑ [26].
The respondent points out that the appellant searched for the CEM by using internet search terms that pertained to little girls showering and bathing.[97] The appellant's possession of CEM, coupled with these search terms, demonstrate more than a generalised sexual interest in children; together, they demonstrate a specific interest in 'naked young girls, who are bathing, with an incestual component to the interest'.[98] The search terms reflect features of the offending conduct in counts 1 and 2.[99] Specifically, the respondent submitted, in each of those counts: (a) the children were completely naked; (b) the offending was committed while the children were showering or bathing; and (c) the offences were committed, or alleged to have been committed, in the presence of the appellant's daughter.[100]
[97] See [0] and [0].
[98] Respondent's submissions [29].
[99] Respondent's submissions [29].
[100] Respondent's submissions [27] ‑ [28].
Further, the probative value of the evidence must be assessed in the context of the other evidence adduced or to be adduced. That context included the shower searches. These search terms and the offending conduct link the CEM with the offending conduct. In The State of Western Australia v Jackson, there was no such link.[101]
[101] Respondent's submissions [30].
In response to these submissions, the appellant advances two propositions. First, he submits that, having regard to the agreed statement of facts concerning the CEM convictions, only a relatively small proportion of the material relating to only one of those counts, namely count 5, is related to the searches concerning young girls and families in the shower or bath.[102] If the connection between those searches and the offending alleged in counts 1 and 2 gives the evidence significant probative value, that sustains the admission only of that part of the CEM, not the whole of the convictions.[103]
[102] Appeal ts 9, 18.
[103] Appeal ts 13 ‑ 14.
Secondly, the judge's direction was expressed in very general terms and did not appropriately confine the manner in which the jury could use the CEM convictions.[104]
[104] Appeal ts 14, 16.
The respondent accepts that, absent the shower searches, the decision of this court in The State of Western Australia v Jackson compels the conclusion that the convictions of possession of the CEM would not have significant probative value in proving that the appellant committed the acts the subject of counts 1 and 2.[105] The significant probative value of the evidence arose from the shower searches and their connection with the circumstances of the alleged offending the subject of counts 1 and 2. Nevertheless, the respondent submitted, the whole of the conduct the subject of counts 5 ‑ 7 was properly admissible. That was said to be so for two reasons. First, that material was evidence of the breadth and depth of the appellant's sexual interest in young girls. Secondly, to have adduced only that part of the searches and the CEM relating to young girls in the shower or bath would have been artificial and misleading, in a manner that would likely have been prejudicial to the appellant.[106]
[105] Appeal ts 22, 27.
[106] Appeal ts 21 ‑ 24.
The respondent submits that, understood in the context of the submissions made in closing by the prosecutor, the judge's directions were adequate.[107]
[107] Appeal ts 26 ‑ 28.

Disposition

The question for this court is whether the evidence of the facts relating to the convictions for counts 5 ‑ 7, outlined in [114] - [121] above, had significant probative value in proof of the offences of which the appellant was convicted ‑ namely counts 1 and 2. There is no occasion to consider whether that evidence had significant probative value in respect of the offences of which the appellant was acquitted.[108]
[108] NTH v The State of Western Australia [110].
It is common ground on appeal that, at trial, there was and could have been no issue as to 'indecency' in relation to count 1, as it was said to have occurred substantially at the same time as count 2 ‑ an allegation of digital penetration.[109] Thus, to be admissible, the evidence relating to the convictions on counts 5 ‑ 7 must have significant probative value in proving that the appellant committed the acts the subject of counts 1 and 2.
[109] Appeal ts 12 ‑ 13, 25.
As the respondent accepts, absent the shower searches, the evidence of the facts relating to the convictions of possession of CEM would not have significant probative value in proving that the appellant committed the acts the subject of counts 1 and 2. In The State of Western Australia v Jackson,[110] this court applied the statement of the plurality in McPhillamy v The Queen[111] that it is generally the tendency to act on a sexual interest that has significant probative value in showing that an accused has acted in a certain way on the charged occasion. Thus, the mere fact that an accused has a sexual interest in persons in the same class as the complainant is not usually of significant probative value in determining whether the complainant's account of the accused's conduct is true.[112]
[110] The State of Western Australia v Jackson [63].
[111] McPhillamy v The Queen [27].
[112] The State of Western Australia v Jackson [73]; see also MNA v The State of Western Australia [2020] WASCA 84 [80], [85].
However, in our view, evidence of the shower searches has significant probative value in proving that the appellant did the acts the subject of counts 1 and 2.
What is said in McPhillamy v The Queen, The State of Western Australia v Jackson and in MNA v The State of Western Australia, as outlined in [156], is expressed to apply 'generally' or 'usually' - it does not state an absolute rule. That is consistent with, and reflects, the character of the 'open textured, evaluative task'[113] of the court in evaluating whether evidence has significant probative value - that task is sensitive to the facts and circumstances of the particular case. The sensitivity of the evaluation to all the circumstances of the case tends against absolute rules. Acknowledging the force of Buss P's contrary view, in our respectful opinion the matters outlined in [159] ‑ [160] below take the evidence of the shower searches outside the general rule and sustain the conclusion in [157].
[113] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 [42].
Conducting the shower searches is 'conduct of the accused' within the definition of propensity evidence in s 31A(1). The searches occurred in a period ‑ July 2016 to April 2017 ‑ that spanned the alleged commission of counts 1 and 2 - between January 2017 and March 2017. Those searches involve a strikingly specific and distinctive focus ‑ little girls showering, including with other little girls, their family, father or parents. That focus has a compelling resonance with the circumstances in which, on E's evidence, counts 1 and 2 occurred. On her evidence, the offence was committed while she was naked, in the shower with the appellant's daughter. The jury's evaluation of the honesty and reliability of that evidence was critical to their verdict on counts 1 and 2. In our view, in evaluating the honesty and reliability of that evidence, a jury would take into account the striking coincidence between (i) these features of the appellant's alleged offending as described in E's evidence and (ii) his conduct in performing the shower searches. To our minds, that conduct would rationally affect the jury's assessment of the probability that the appellant committed counts 1 and 2 as alleged by E. In this way, the evidence of the shower searches would be influential in fact finding.
The same conclusion can be reached by a different path, based on the 'tendency' element of the definition of propensity evidence in s 31A(1)(b). The conducting of the searches is evidence of 'a tendency that the accused [the appellant] had' ‑ namely, a sexual interest in little girls showering, including with other little girls or members of their family. That strikingly distinctive and specific sexual interest - with its resonance with the circumstances in which, on E's evidence, counts 1 and 2 occurred - has significant probative value in proof of counts 1 and 2 for reasons corresponding with those in [159].
In our respectful opinion, the matters outlined in [159] ‑ [160] serve to distinguish this case from cases such as The State of Western Australia v Jackson and MNA v The State of Western Australia, which applied the general rule explained in [156].
In MNA v The State of Western Australia, Buss P and Mitchell JA explained why McPhillamy v The Queen precludes coincidence reasoning to the effect that it might be thought to be an unlikely coincidence that the person who is the subject of a child complainant's fabricated or mistaken allegation of sexual conduct would just happen to be a person who, unknown to the complainant, has demonstrated a sexual interest in children. Their Honours said as follows:[114]
We accept that the evidence of the appellant's conduct with the child persona is relevant to the issue of whether the appellant touched the complainants in the manner indicated by the State. It may be thought unlikely that the complainants, who were not aware of the appellant's previous offending, would fabricate evidence about him engaging in conduct which reflected the sexual interest he had expressed to a person he thought was a girl about the same age as the complainants. The statements by the appellant to the 13-year-old child persona that he wanted to touch her was likewise relevant in assessing the appellant's evidence that he would never act in the way alleged by the complainants. However, the question is not whether the evidence is relevant but whether it has sufficient importance to give it significant probative value in relation to whether he actually touched A and B.
It may be thought to be an unlikely coincidence that the subject of a child complainant's fabricated allegation of sexual conduct would just happen to be a person who, unknown to the complainant, has demonstrated a sexual interest in children. However, if that were sufficient to give evidence of sexual conduct directed to a child other than the complainant significant probative value, then the threshold in s 31A(2)(a) would be met in almost every case in which a person charged with child sexual offending had also previously demonstrated a sexual interest towards a child other than the complainant. The decision in McPhillamy, and the decision of the majority in Hughes v The Queen [[2017] HCA 20; (2017) 263 CLR 338], indicate that the combination of an allegation of fabrication by a child complainant and evidence that an accused has demonstrated a sexual interest towards another child is not generally sufficient to give evidence significant probative value. As those cases emphasise, it is the accused's sexual interest in children together with the accused's tendency to act on that interest which is likely to be influential to the determination of whether the reasonable possibility that the complainant has fabricated his or her account has been excluded.
In our respectful view, the coincidence reasoning outlined in [158] above is materially different because it is founded upon a distinctly more specific matter than having a sexual interest in young girls, namely the focus of the shower searches on little girls showering, including with other little girls, their family, father or parents.
[114] MNA [84] - [85].
We do not accept the respondent's submission that the evidence of the whole of the appellant's offending in counts 5 ‑ 7 was admissible as context for the jury's evaluation of the evidence of the shower searches. To be admissible, the evidence as to counts 5 ‑ 7 must meet the statutory threshold of significant probative value. For the reasons given in [156], evidence that a person has a sexual interest in young girls does not usually have significant probative value in proof that the person has done acts such as the acts the subject of counts 1 and 2. That position is applicable to the evidence relating to the conduct the subject of counts 5 ‑ 7 other than the evidence of the shower searches. This is not altered by the probative value, explained in [157] ‑ [160], of the evidence as to the shower searches. Nor does the evidence as to counts 5 ‑ 7, other than the evidence of the shower searches, reach the threshold of significant probative value on the basis that it demonstrates the depth and breadth of the appellant's sexual interest in young girls, and thereby provides context for evaluating the more specific sexual interest referred to in [160] above.
Thus, in our view, only the shower searches[115] were admissible under s 31A of the Evidence Act - the remainder of the facts as to the convictions on counts 5 - 7 were not admissible.
[115] As defined in [118] above.
At trial, evidence of the whole of the conduct the subject of counts 5 ‑ 7 was admitted, without objection, as propensity evidence. But, as explained above, in our view only a (relatively small) part of that conduct ‑ the shower searches ‑ has significant probative value in proving that the appellant did the acts the subject of counts 1 and 2. In other words, the jury could properly engage in reasoning of the kind outlined in [159] and [160] above only by reference to these searches, which are part of the facts relating to count 5 only ‑ not by reference to the whole of the conduct the subject of counts 5 ‑ 7. Whether the admission of the whole of the offending the subject of counts 5 ‑ 7 occasioned a miscarriage of justice depends upon the use made of the evidence at trial (see [142] above). That directs attention to the judge's direction to the jury concerning the propensity evidence.
In our respectful view, for the reasons that follow, the judge's direction did not adequately confine the jury to using only this part of the evidence and facts relating to the convictions on count 5, namely the shower searches, as propensity evidence. That is not surprising, as no party suggested that the jury's use of the evidence should be so confined.[116] To the contrary, the parties proceeded on the basis that the jury could rely on the evidence relating to the convictions on counts 5 ‑ 7 more broadly.
[116] See [123] ‑ [130] above.

In directing the jury, the judge must give the jury such warnings as may be called for by the circumstances of the particular case, including warnings against following impermissible paths of reasoning.[117] The judge must give a warning to the jury whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice.[118] Generally speaking, where evidence is admissible for one purpose but inadmissible for another, as is often the case when propensity evidence is admitted, the trial judge should direct the jury that they must not use the evidence for the purpose for which it is inadmissible, at least where the use of the evidence for the impermissible or irrelevant purpose would be adverse to the accused.[119] Thus, when propensity evidence is admitted, it will often be important for the judge to identify with clarity the permissible and impermissible uses of the evidence.[120]
[117] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49].
[118] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 330; Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86; R v GW [2016] HCA 6; (2016) 258 CLR 108 [50]; La Bianca v The State of Western Australia [2019] WASCA 105 [50].
[119] Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [22]; Banks v The State of Western Australia [2018] WASCA 130 [42].
[120] See, for example, La Bianca v The State of Western Australia [51]; MNA v The State of Western Australia [91].
Whether the judge's failure to give a propensity warning occasioned a miscarriage of justice is to be assessed taking into account the summing up as a whole and the conduct of the parties.[121] In this regard, the failure of the appellant to have complained of an inadequacy in the judge's directions is relevant. While that is not fatal to an appeal, it may indicate that, in the context of the atmosphere of the trial, it did not seem to those present that there was any reasonable ground for concern regarding the adequacy and fairness of the summing up.[122]
[121] Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449 [63].
[122] Mahmood v The State of Western Australia [2009] WASCA 220 [65]; Sayed v The Queen [2012] WASCA 17; (2012) 220 A Crim R 236 [76]; Banks v The State of Western Australia [43].
The judge's summary of the State's submission concerning the CEM convictions is set out at [131] above. Relevantly, the judge said that the State had submitted that these convictions demonstrate that the appellant had a sexual interest at the relevant time and acted on the interest to download the material. His Honour also said that, on the State case, the appellant's sexual interest related in part to children having baths or showers. In so saying, the judge did not confine the State's case. What his Honour said in the direction set out in [134] above would have been heard and understood by the jury in that context.
The judge's direction concerning the CEM material included, relevantly, the following:
(1)the State says the CEM demonstrates that the appellant has a sexual interest in children and that this evidence increases the objective probability that he committed counts 1 and 2;
(2)the jury could only use the evidence in this way if they were satisfied beyond reasonable doubt that the appellant had demonstrated a sexual interest in children and was willing to give effect to that interest;
(3)it was for the jury to assess whether the CEM evidence shows that the appellant had the tendency suggested by the State and if so whether it assists the State's case on counts 1 ‑ 4;
(4)the fact the appellant pleaded guilty to counts 5 ‑ 7 did not automatically mean or establish that he was guilty of counts 1 ‑ 4;
(5)the jury should take into account the difference between the nature of the act of possession (of the CEM) and the act of touching in relation to count 1 and penetration in relation to count 2;
(6)the judge concluded his direction by identifying four restrictions on the use to which the jury could put the CEM:
(a)They could not use it to make up for deficiencies in the evidence proving each element of the offence.
(b)They could not reason from satisfaction that the appellant had the interest alleged by the State that it followed that the State's other evidence ought to be accepted as reliable
(c)The jury could not convict the appellant on the basis of the tendency alone. To reason in that manner would be very wrong.
(d)In the end, to convict the appellant of a charge the jury had to be satisfied beyond reasonable doubt as to each element of the offence, that the complainant was truthful, accurate and reliable and that the appellant's denial was untruthful and could be rejected.
In our view, two features of the judge's direction mean that there was a perceptible risk that the jury might use the convictions on counts 5 ‑ 7 in an impermissible manner.
First, the direction did not explicitly confine the use of the convictions to the shower searches. To the contrary, the general terms in which the direction was expressed would likely have conveyed to the jury that they could reason by reference to all of the convictions on counts 5 ‑ 7 and the whole of the facts relating to those convictions. Indeed, the judge's direction did not refer at all to the shower searches. Thus the judge's direction was likely to invite the jury, should they choose to do so, to engage in propensity reasoning in relation to all the convictions on counts 5 ‑ 7 ‑ those convictions making it more probable that he committed (relevantly) counts 1 and 2. For the reasons already given, that was not permissible ‑ only the shower searches had significant probative value so as to sustain the availability of propensity reasoning or reasoning of the kind outlined in [159] above.
Secondly, the judge's direction might well have been taken by the jury to invite or permit reasoning along the following lines. The convictions on counts 5 ‑ 7 demonstrate that the appellant had, at the relevant time, a sexual interest in prepubescent girls and that he acted on that interest by downloading the CEM. That demonstrated willingness to act on his sexual interest in prepubescent girls (by downloading the CEM) makes it more likely that he acted as alleged by E in relation to counts 1 and 2, which also involve him acting on his sexual interest in prepubescent girls, albeit in a different manner. In our view, what his Honour said as summarised at [169] and [170](1), (2), (3) and (5) above makes it likely that the jury would have so understood the direction. At the least, there is a perceptible risk in that regard.
To reason in such a manner is impermissible. So much was decided, at least by necessary implication, by this court's decision in The State of Western Australia v Jackson.
The respondent did not suggest otherwise. Rather, the respondent submitted that the prosecutor's closing address to the jury had focused on the shower searches and that the jury would have understood the judge's direction in the same way.[123] We do not accept that submission. While the prosecutor emphasised the shower searches, she did not clearly confine the use of the convictions to the shower searches. The features of the judge's direction referred to in [173] above seem to us to give rise, at the least, to a perceptible risk that the jury might reason in the manner outlined in that paragraph.
[123] Appeal ts 26 - 28.
The restrictions on the jury's use of the propensity evidence outlined in [170](6) above were appropriate and necessary. However, they did not detract from, or remove, the perceptible risk to which we have referred.
For these reasons, in our respectful view, the absence, in the judge's direction, of a confining of the jury's propensity use of the CEM convictions to the shower searches, and the perceptible risk that the jury might have understood the direction in the manner outlined in [173] above, gave rise to a miscarriage of justice.
In coming to this conclusion we do not overlook that no complaint was made at the trial as to the direction. We are satisfied that defence counsel did not fail to complain for a forensic or tactical reason.
In fairness to the trial judge, a number of points should be emphasised, notwithstanding that some of them have already been noted. First, the defence did not object, before or at trial, to the admission of the propensity evidence. Secondly, defence counsel made no submissions concerning the use to which the propensity evidence could, and could not, be put. Thirdly, the prosecutor did not clearly confine the use of the convictions to the shower searches. Fourthly, no party made any objection to the trial judge's directions. Fifthly, the judge's direction as to the use of the convictions was consistent with the use contemplated by the reasons given by Sleight DCJ on the unopposed s 31A application - see [96] above. Sixthly, and significantly, the judge directed the jury before this court's decision in The State of Western Australia v Jackson.
For these reasons, ground 3 succeeds and ground 2 succeeds in part. The appellant's convictions must be set aside and the appellant retried.

Conclusion

For the above reasons, we would make the following orders:
(1)The application for an extension of time within which to appeal is granted.
(2)Leave to appeal on grounds 2 and 3 is granted.
(3)The appeal is upheld.
(4)The appellant's convictions on counts 1 and 2 are set aside.
(5)The appellant be retried on counts 1 and 2.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Associate to the Honourable Justice Beech
31 JULY 2020