Kha v The State of Western Australia
[2022] WASCA 173
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KHA -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 173
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 16 MARCH 2022
DELIVERED : 22 DECEMBER 2022
FILE NO/S: CACR 74 of 2021
BETWEEN: KHA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: WALLACE DCJ
File Number : IND 1851 of 2019
Catchwords:
Evidence - Propensity evidence - Whether evidence admissible under s 31A of the Evidence Act 1906 (WA) - Whether evidence revealing a sexual interest of adult male accused in females aged 9 to 12 years is significantly probative of whether accused was sexually motivated in touching the thighs of complainants aged 9 or 10 years
Words and phrases - 'Significant probative value'
Criminal law - Sexual offences against children - Appeal against conviction - Whether the trial judge's direction as to the permissible and impermissible use of evidence of other sexual conduct gave rise to a miscarriage of justice
Legislation:
Criminal Code (WA), s 320(2), s 320(4), s 333
Evidence Act 1906 (WA), s 31A
Result:
Appeal allowed in part
Convictions on counts 2, 3 and 5 set aside and a new trial ordered on those counts
Category: B
Representation:
Counsel:
| Appellant | : | K Kumar |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | Kaminni Kumar, Equus Chambers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Clark v Neff [2021] WASCA 209
Dann v The State of Western Australia [2021] WASCA 15
Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894
HTD v The State of Western Australia (No 2) [2019] WASCA 39
HTN v The State of Western Australia [2022] WASCA 51
JEL v The State of Western Australia [2022] WASCA 32
JPH v The State of Western Australia [2022] WASCA 99
Kuc v The State of Western Australia [2021] WASCA 101; (2021) 289 A Crim R 547
La Bianca v The State of Western Australia [2019] WASCA 105
LNN v The State of Western Australia [2021] WASCA 39
LNV v The State of Western Australia [2019] WASCA 180
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
MNA v The State of Western Australia [2020] WASCA 84
NDY v The State of Western Australia [2020] WASCA 172
R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56
The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285
The State of Western Australia v JHN [2021] WASCA 225
Wark v The State of Western Australia [2020] WASCA 19; (2020) WAR 365
Table of Contents
Summary
Prosecution case at trial
Counts 1 and 2: offending against E
Count 3: offending against Z
Counts 4 and 5: offending against F
Defence case at trial
Admitting evidence of other sexual conduct: general principles
Contextual use
Evidence of an accused's propensity to commit sexual offences
Circumstantial evidence of motive to commit the charged offence
Jury directions about evidence of other sexual conduct
The directions about evidence of other sexual conduct in this case
Other conduct evidence, other detainment evidence and prior conviction
Identification of the use to which the State proposed to put the evidence
Directions as to assessment of the evidence
Directions as to the use to which the evidence could be put
Directions as to the use which the evidence could not be put
Ultimate question identified
'Z other conduct evidence' and 'F other conduct evidence'
Cross-admissibility direction
The directions about the elements of the charged offences
Count 1: Sexual penetration of a child under the age of 13 years
Counts 2, 3 and 5: indecent dealing with a child under the age of 13 years
Count 4: unlawful detention
Ground of appeal 1: admissibility of the CEM evidence
The CEM evidence
Admission of the CEM evidence
Appellant's submissions
Disposition of ground 1
Significant probative value of CEM evidence in relation to counts 3 and 5
Significant probative value of CEM evidence in relation to count 2
Conclusion as to ground 1
Ground of appeal 2: directions as to use of CEM evidence
Direction as to count 2
Direction as to counts 2, 3 and 5
Conclusion as to ground 2
Ground of appeal 3: use of evidence beyond that proposed by the State
CEM evidence
Other conduct evidence
Other detainment evidence
Conclusion as to ground 3
Disposition of the appeal
Orders
JUDGMENT OF THE COURT:
Summary
On 26 February 2021, the appellant was convicted after trial of the following counts in the same indictment:[1]
1.On a date unknown between 28 January 1997 and 18 December 1997, he 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 Criminal Code (WA).
2.On another date unknown between 28 January 1997 and 18 December 1997, he indecently dealt with E, a child under the age of 13 years, by touching her breast; contrary to s 320(4) of the Code.
3.On or about 11 March 1998, he indecently dealt with Z, a child under the age of 13 years, by touching her thigh; contrary to s 320(4) of the Code.
4.On a date unknown between 27 January 1998 and 10 April 1998, he unlawfully detained F; contrary to s 333 of the Code.
5.On a date unknown between 27 January 1998 and 4 July 1998, he indecently dealt with F, a child under the age of 13 years, by touching her thigh; contrary to s 320(4) of the Code.
[1] The indictment originally contained 11 counts but was amended after the State discontinued a number of charges. References in these reasons are to the counts on the indictment dated 21 April 2020.
The appellant received a total effective sentence of 5 years' immediate imprisonment, starting from 28 May 2021, for this offending. The appellant was made eligible for parole. The individual sentences were as follows:
Count
Offence
Sentence
Accumulation
1
Sexual penetration of E
3 years 6 months
Head Sentence
2
Indecent dealing with E
18 months
Cumulative
3
Indecent dealing with Z
12 months
Concurrent
4
Unlawful detention of F
12 months
Concurrent
5
Indecent dealing with F
12 months
Concurrent
Total effective sentence
5 years
The appellant now appeals against his convictions on three grounds, which in substance contend that the trial judge made a wrong decision on a question of law, or alternatively a miscarriage of justice arose, because:
1.Evidence of the appellant's convictions of offences of possession of child exploitation material (CEM evidence) was received which was not admissible under s 31A of the Evidence Act 1906 (WA) or otherwise.
2.The trial judge misdirected the jury as to the use it could make of the CEM evidence.
3.The trial judge directed the jury that they could use certain evidence in a manner that was inconsistent with, and went beyond, the State's case.
The application for leave to appeal on grounds 1 and 2 was referred to the hearing of the appeal. The appellant was granted leave to amend his grounds of appeal to add ground 3 at the hearing of the appeal.
For the following reasons, in our view, ground 2 is established but grounds 1 and 3 are not established. The appeal must be allowed, the appellant's conviction of counts 2, 3 and 5 on the indictment must be set aside and a new trial must be ordered on those counts.
Prosecution case at trial
The appellant was employed as a teacher of year 4 and 5 students at a metropolitan primary school (School) in the 1990s. The complainants, E, Z and F, were students at the School.
The prosecution case as to each charge on the indictment is summarised below.
Counts 1 and 2: offending against E
In 1997, when E was in grade 5, E's class had maths lessons with the appellant once or twice a week. E formed the view that the appellant was very 'touchy-feely' with female students. She became concerned that the appellant had an inappropriate relationship with one of her female friends.[2]
[2] Trial ts 127.
During one recess or lunch, E approached the appellant in his classroom and asked him directly if he was having sex with her female friend. The appellant said something like, 'What is it to you?'. He then backed E up the wall and pinned her against it by pushing his left forearm across her chest with his hand resting on her shoulder. The appellant then took his other hand and put it up E's skirt. She was wearing her school uniform at the time. He moved her underwear aside and inserted his fingers into her vagina (count 1). The appellant said something like, 'I can do whatever I want. I'll get away with it, there's nothing you can do'. The penetration continued for a few minutes, during which E was frozen and could not move or speak.[3]
[3] Trial ts 127 - 128.
About two weeks later, the appellant kept E back after class as she was misbehaving. E shouted at the appellant something like, 'I'm going to report you to the principal'. The appellant replied, 'Go ahead. He won't believe you'.[4]
[4] Trial ts 129.
The appellant then approached E and backed her up against a partition wall. He placed his left hand on her shoulder and applied pressure. The appellant took his right hand and put it down the front of her school uniform shirt and felt around her left nipple. His hand was resting against her skin over her left nipple. E's breasts were not developed at that time, and she was not wearing a bra (count 2).
Count 3: offending against Z
Z was in year 5 at the School in 1998. When she was 9 years old, her class would travel by bus to a public swimming pool to have swimming lessons. On one occasion, the appellant came and sat next to Z, who was wearing a one-piece bathing suit. The appellant began to rub his right hand up and down Z's left thigh on her bare skin, and repeatedly said to Z, 'Tell me to stop' (count 3). The appellant stopped touching Z's thigh when she asked him to stop and stayed seated next to her until the bus arrived at the pool.[5]
Counts 4 and 5: offending against F
[5] Trial ts 130.
F was in the appellant's year 5 class at the School in 1998. Inside the classroom, there was a small storeroom or cupboard. F saw the appellant lock children in this storeroom on their own. One time when F did something to upset the appellant, he grabbed her forearm, put her in the cupboard and locked the door with a key. F was in the cupboard for about 15 minutes and could not get out because the door was locked from the outside (count 4).[6]
[6] Trial ts 131.
During silent reading in the class, the students had to sit on the floor while the appellant sat on a chair at his desk. The appellant would have one of the girls in the class sit on his lap. One day, he told F to sit on his lap and she did so. She was wearing her school pleated skirt and a polo shirt. When F sat on the appellant's lap, he put his hand under her skirt onto her bare skin, up her thigh, and started to stroke her inner thigh (count 5). After about 10 seconds of him stroking her inner thigh, F jumped off his lap and ran to the toilet.[7]
[7] Trial ts 132.
Defence case at trial
The defence case at trial was that, while the appellant admitted that he was a teacher at the School at the relevant time, he denied that he dealt with or sexually offended against the complainants (whose names he struggled to recall when interviewed by police in November 2018).[8]
[8] Trial ts 137.
The appellant elected not to give or adduce evidence in his defence.[9] The defence case was based on the contents of the appellant's video record of interview with police on 28 November 2018 (EROI).
[9] Trial ts 371.
Admitting evidence of other sexual conduct: general principles
In appropriate circumstances, evidence of sexual conduct other than that which is the subject of a charge of a sexual offence (charged offence) may be admissible in relation to the charged offence either at common law or under s 31A of the Evidence Act for a variety of purposes.
We will refer to evidence of sexual conduct other than that which is the subject of a charged offence as evidence of other sexual conduct. Evidence of other sexual conduct may be:
1.evidence of sexual conduct which has not been the subject of any charge (and which may or may not constitute an offence);
2.evidence of sexual conduct which constitutes an offence of which the accused has been previously convicted; and
3.evidence of sexual conduct which is the subject of another charge on the same indictment as the charged offence.
Evidence of other sexual conduct may concern evidence of sexual conduct directed towards the complainant who is the subject of the charged offence. Evidence of other sexual conduct may also concern evidence of sexual conduct directed towards a third person.
General principles governing the admissibility of evidence of other sexual conduct are considered below.
Contextual use
As was noted in LNN v The State of Western Australia,[10] evidence of other sexual conduct directed towards the complainant who is the subject of the charged offence may be relevant to the evaluation of other evidence on which the prosecution relies in relation to the charged offence. This use is often referred to as providing 'context', although this phrase can cover a variety of different uses of evidence, including:
(1)The evidence may enable a complainant to give a full account so that their evidence of the accused's conduct on the day of the offence in a familial setting would not appear 'out of the blue' and inexplicable on that account.
(2)The evidence may show grooming of the complainant from a young age, or otherwise explain the complainant's compliance with the offending and his or her failure to complain.
(3)The evidence may explain why an accused might feel able to act with impunity, having gotten away with similar offending before.
(4)The evidence may explain why the complainant is unable to give details of a specific incident which formed part of regular repeated sexual offending by the accused.
(5)The evidence may form an integral part of an account of a connected series of events, and may be necessary to render the complainant's account complete and intelligible. (citations omitted)
[10] LNN v The State of Western Australia [2021] WASCA 39 [175].
When evidence of other sexual conduct is admitted on this basis, the evidence does not go to establishing the accused's guilt of the charged offence. Rather, it is relevant to the evaluation of (giving context to) other evidence.
Evidence of the kind just described may also be characterised as 'relationship evidence' as defined in s 31A(1) of the Evidence Act. However, evidence of the kind described above is ordinarily admissible at common law, subject to the court's discretion to exclude admissible evidence where the probative value is outweighed by its prejudicial effect.[11] As such, it is usually not necessary for the prosecution to resort to s 31A, with its more stringent requirement that the evidence have significant probative value, in order to admit contextual evidence of this kind.
Evidence of an accused's propensity to commit sexual offences
[11] JPH v The State of Western Australia [2022] WASCA 99 [44].
Evidence of other sexual conduct may also be admitted in some circumstances to prove a propensity of the accused to commit offences of the kind charged. That is, the evidence may be relied on to show that the accused is a particular kind of person and, on that account, is more likely to have committed the charged offence. In addition, propensity evidence may be adduced for the purpose of inviting the jury to reason that the fact that the accused has done something similar to the charged offence on one or more occasions makes it more likely that the accused committed the charged offence.[12]
[12] See HTN v The State of Western Australia [2022] WASCA 51 [97] - [106].
At common law, evidence is not admissible if the only purpose of its tender is to show that the accused had a propensity or disposition to commit crimes, or crimes of a particular kind, or that he or she was the sort of person likely to commit a charged offence.[13] In Western Australia, the admission of evidence for the purpose of proving propensity falls to be determined under s 31A of the Evidence Act. 'Propensity evidence' is defined by s 31A(1) to mean:
(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[.]
[13] HTN [91].
Section 31A(2) of the Evidence Act sets out the circumstances in which propensity evidence may be admitted in the following terms:
Propensity 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.
General principles governing the admission of evidence under s 31A of the Evidence Act are set out in a number of recent decisions of this court.[14] It is unnecessary to repeat those statements of general principles in these reasons.
[14] La Bianca v The State of Western Australia [2019] WASCA 105 [21] - [26], [143] - [146]; NDY v The State of Western Australia [2020] WASCA 172 [47] - [59]; The State of Western Australia v JHN [2021] WASCA 225 [114] - [120].
Mere proof that an accused has a sexual interest in a class of persons into which the complainant falls will not usually have significant probative value as to whether the accused committed a charged sexual offence against the complainant. That is, the mere fact that an accused has a motivation to commit a charged sexual offence does not ordinarily give evidence of sexual interest in persons such as the complainant significant probative value. Generally, it is the accused's tendency to act on the sexual interest which gives propensity evidence its significant probative value in showing that the accused was more likely to have committed the charged offence.[15]
[15] McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 [27]; The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [63].
In considering whether evidence of other sexual conduct has 'significant probative value', a distinction is usually drawn between:
1.evidence of other sexual conduct directed towards the complainant in relation to the charged offence; and
2.evidence of other sexual conduct directed towards third persons.
A complainant's evidence of an accused's other sexual conduct in relation to him or her may be admissible as propensity evidence in proof of a charged offence which the accused is alleged to have committed against that complainant. That is so whether or not the other sexual conduct has some special, particular or unusual feature. Evidence of other sexual conduct may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it. Evidence of that propensity may assist to eliminate doubts that might otherwise attend the complainant's evidence of the charged offence. This is on the basis of ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction, and the opportunity presents itself to do so again, he or she is likely to seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person (at least where the conduct is not too far separated in point of time).[16]
[16] R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56 [48] - [51].
By contrast, for evidence of other sexual conduct against a third person to have significant probative value, there must ordinarily be some feature of or about the other sexual conduct which links it with the charged offence. Absent such a feature of or about the offending, evidence that an accused has engaged in other sexual conduct against a third person proves no more about the charged offence against the complainant than that the accused has engaged in other sexual conduct directed towards a third person. The mere fact that an accused has engaged in other sexual conduct directed towards a third person is ordinarily not significantly probative of the accused having committed the charged offence against the 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 that tendency may increase the likelihood that the complainant's account of the charged offence is true.[17]
[17] Bauer [58].
These principles apply equally to other sexual conduct charged in a multi-count indictment. Where an accused is charged with generally similar sexual offences against a single complainant, proof of one of the charges will generally provide circumstantial propensity evidence in relation to the other counts.[18] However, where an accused is charged with sexual offences against multiple complainants, proof of a sexual offence against one complainant will generally only be admissible on a charge against another complainant if there is some common feature of or about the offending.
[18] Bauer [50].
In Jackson, evidence of sexual interest by the accused in persons in the same class as the complainants, manifested by possession of child exploitation material, was held to have significant probative value on charges of indecent dealing.
In Jackson, the accused was charged with two counts of indecent dealing with two 12-year-old girls, by touching their buttocks with the back of his hand as he passed them in a supermarket aisle. He was charged on the same indictment with possessing and accessing child exploitation material. The child exploitation material depicted female children of the complainants' approximate age. The material was found on electronic devices in the accused's possession when he was arrested a few days after the alleged indecent dealing offences.
The court in Jackson was concerned with whether the indecent dealing charges should be tried separately from the child exploitation material charges. That turned on whether evidence relevant to the child exploitation material charges had significant probative value in relation to the indecent dealing charges for the purposes of s 31A of the Evidence Act, so as to be cross-admissible.
The court held that evidence relevant to the child exploitation material charges did not have significant probative value in proving that the accused in Jackson dealt with the complainants by touching their buttocks. Applying the principles noted at [26] above, the court held that it was insufficient that evidence relating to the child exploitation material charges demonstrated a sexual interest in children of or about the complainants' age. While the evidence was relevant, it was not significantly probative as to whether the alleged touching of the complainants' buttocks occurred.[19]
[19] Jackson [73] - [80].
However, the court noted that it was also necessary for the prosecution in Jackson to prove that touching the complainants on their buttocks was indecent. Indecency connoted conduct of a sexual character. Some conduct may be regarded as so offensive to common standards that it should be regarded as indecent of itself, regardless of the motivation for the conduct. However, the court said that brushing another person's buttocks with the back of hand was not conduct of that character. It was accepted in Jackson that, to prove the alleged conduct was indecent, it was necessary for the prosecution to prove that the conduct was deliberate and sexually motivated.[20] The court said:[21]
The propensity evidence is cogent evidence that, at a time substantially contemporaneous with [the indecent dealing counts], the respondent had a sexual interest in pre-adolescent girls. The fact that the respondent had a sexual interest in pre-adolescent girls, manifested by viewing images at about the time of the contact, makes it more likely, to a significant extent, that in the objective circumstances in which the contact allegedly occurred, his contact with the buttocks of one or both of the complainants (who were pre-adolescent girls) was deliberate and sexually motivated. Jurors are told that, in evaluating evidence and in making findings, they should use their common sense and their experience of life. Whether or not invited to do so, jurors are likely to assess competing versions of events or conduct by reference to their ideas of normal or predictable behaviour. In our view, the same is true of a jury's assessment of the inferences to be drawn as to a person's state of mind when acting in a particular manner. In evaluating whether they are satisfied as to a sexual motivation, the jury would, absent the propensity evidence, proceed on the assumption, based on common experience, that the vast majority of adult men do not have a sexual interest in pre-adolescent girls. Applying that assumption to the facts of the touching, as the jury found them to be, may leave the jury in doubt as to whether the touching was sexually motivated. The propensity evidence, if accepted, would replace this assumption with a finding that the respondent had, at a time substantially contemporaneous with the touching, a sexual interest in pre-adolescent girls. In this manner, the propensity evidence may well resolve any doubts the jury might have as to whether the respondent's touching of each complainant's buttocks with the back of his hand was deliberate, sexually motivated, conduct. Further, the jury may well think it an unlikely coincidence that an adult man engaging in this conduct with a 12-year-old girl inadvertently or for reasons which are not sexual would happen to have a sexual interest in girls of that age manifested in the manner alleged by [the child exploitation material charges]. (citation omitted)
[20] Jackson [56] - [59], [71] - [72].
[21] Jackson [61].
Jackson was applied by a majority of this court in MNA v The State of Western Australia.[22] In MNA evidence of the accused attempting, during electronic communications, to procure young teenage girls to engage in sexual activity online was found to have significant probative value on charges of indecent dealing with a child under the age of 13 years. The alleged touching occurred while the accused was sitting on a couch watching movies. Although some of the alleged touching was, on the complainant's version, clearly indecent, the defence case left open the issue of whether inadvertent touching, which was not sexually motivated, may have accidently occurred during 'horseplay'. The majority held that the impugned evidence had significant probative value in relation to whether the touching was deliberate and sexually motivated. However, the evidence did not have significant probative value on the issue of whether the touching occurred.[23]
Circumstantial evidence of motive to commit the charged offence
[22] MNA v The State of Western Australia [2020] WASCA 84 [69] - [76].
[23] MNA [76], [87] - [89].
Another way in which evidence of other sexual conduct may be admitted at common law is as evidence of the accused's motive to commit the charged offence.
Dann v The State of Western Australia provides an illustration of that use of evidence of other sexual conduct.[24] In Dann, the accused was charged with sexually penetrating the adult complainant without consent, and with attempting to do so. Evidence of sexual touching of the complainant by the accused earlier in the evening of the alleged offences, which had been rebuffed by the complainant, was admissible as circumstantial evidence. It was capable of showing that the accused had a sexual interest in the complainant at a time close to the alleged offences. The existence of a sexual interest at the relevant time was a factor that made it more likely that the accused would behave in the manner alleged in the charged offences. That was not because of any propensity on the part of the accused but because a sexual interest is a factor that may motivate the charged sexual acts. Evidence that the complainant had rejected the accused's earlier advances at that time made it less likely that she consented to sexual activity or that the accused could reasonably but mistakenly have believed that she was consenting. The evidence was relevant both to whether the acts constituting the charged offences had occurred and whether they had occurred without the consent of the complainant.[25]
[24] Dann v The State of Western Australia [2021] WASCA 15.
[25] Dann [4], [45] - [46].
In Dann the court observed:[26]
The evidence in this case can be distinguished from those cases where uncharged acts on other unrelated occasions are relied on to demonstrate a particular tendency on the part of the accused or the nature of a relationship between the accused and the complainant. In such cases the process of reasoning is to ask whether those other acts occurred and to then determine whether they prove the existence of some relevant propensity or relationship. It is proof of such a propensity or relationship that provides the connection between what would otherwise be unconnected acts. Here the uncharged acts occurred on the same night and it was not necessary to establish any propensity or relationship to prove a relevant connection.
The evidence can also be distinguished from context evidence, that is, evidence used to explain or evaluate other evidence. A variety of evidence can be described as contextual, such as evidence that explains a complainant's failure to complain or evidence that explains why an accused may have been confident to act in a particular way. … A feature of context evidence is that it does not, of itself, increase the likelihood that the accused committed the offence. That is not the case here. In this case proof of the existence of a sexual interest in the complainant on the relevant night was not mere context evidence, rather it was evidence that increased the likelihood that the offences had occurred.
[26] Dann [47] - [48].
The importance of the other sexual conduct having occurred at a time closely proximate to the alleged offending was emphasised in JEL v The State of Western Australia.[27]
[27] JEL v The State of Western Australia [2022] WASCA 32[136] - [137].
Jury directions about evidence of other sexual conduct
Although their application to cases where evidence of other sexual conduct is adduced has recently proved problematic, the principles are not difficult to state.
A judge is bound to give a direction to the jury if, in the circumstances of the particular case, the direction is necessary to avoid a perceptible risk of a miscarriage of justice. This is an incident of the judge's duty to ensure a fair trial for the accused.[28]
[28] Kuc v The State of Western Australia [2021] WASCA 101; (2021) 289 A Crim R 547 [124] and cases there cited.
Where evidence is admitted for a limited purpose and there is a perceptible risk that, absent a direction, the jury will use the evidence for an improper purpose, then a direction as to the permissible uses will be required to avoid a miscarriage of justice. This will ordinarily involve directing the jury, with the authority of the trial judge, as to the ways in which the evidence may be, and more importantly must not be, used.
This general principle and its application to propensity reasoning was stated in the following terms by Beech JA in LNV v The State of Western Australia:[29]
Generally speaking, where evidence is admissible for one purpose but inadmissible for another, 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. (citations omitted)
[29] LNV v The State of Western Australia [2019] WASCA 180 [103], adopted in LNN [177].
The risk of a jury engaging in propensity reasoning has been recognised as peculiarly strong where evidence of other sexual conduct is adduced in cases of charged sex offences.[30] In many, but not all,[31] such cases there will be a perceptible risk of a jury adopting propensity reasoning in the absence of a direction not to do so. Therefore, where evidence of other sexual conduct is admitted for purposes other than proving a propensity by the accused to commit the charged offence, a warning to the jury not to engage in propensity reasoning is ordinarily required.
[30] JPH [46], [128].
[31] See, for example, Dann; JPH [47], [56], [131]; Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894 [42] - [46].
Where evidence of other sexual conduct is admitted for purposes other than proving a propensity by the accused to commit the charged offence, it will ordinarily be insufficient to merely direct the jury that the evidence provides context or background.[32] Ordinarily, where it is necessary to guard against a jury impermissibly using evidence for the purpose of propensity reasoning, the direction must inform the jury that:[33]
(a)the jury must not reason, on the basis of the evidence, that the accused was the kind of person who was likely to have committed the charged offence; and
(b)the jury must not take the evidence into account in deciding whether the State has proved beyond reasonable doubt that the accused committed the charged offence.
[32] JPH [44]
[33] JPH [45].
The court in Jackson gave an example of a direction which is appropriate where evidence of other sexual conduct is admitted only for the purpose of proving the 'indecency' element of an indecent dealing charge.
The direction proposed in Jackson, adapted to the circumstances of counts 3 and 5 in the present case, included the following elements:[34]
1.In determining whether the appellant touched the relevant complainant as alleged in relation to counts 3 and 5, the jury must not have any regard to the CEM evidence.
2.If the jury is satisfied beyond reasonable doubt that the appellant touched the complainant, they must then determine whether they are satisfied beyond reasonable doubt that the touching was indecent. The jury could only be satisfied that the touching of the complainant's thigh was indecent if satisfied beyond reasonable doubt that it was deliberate and sexually motivated.
3.It is open to the jury, should they so decide, to find that the CEM evidence, if they accept it, is evidence that the appellant had a sexual interest in girls aged 9 to 12 years at the time of the indecent dealing alleged in counts 3 and 5.
4.Should the jury so find, it is open to the jury to take into account the existence of the sexual interest together with all other relevant evidence which the jury accepts, in deciding whether they are satisfied beyond reasonable doubt that the touching of the relevant complainant's thigh by the appellant occurred deliberately and with a sexual motive, and was therefore indecent.
[34] Jackson [81].
In MNA, discussed at [37] above, it was held that the failure to give a direction of this kind gave rise to a miscarriage of justice in all the circumstances of that case.[35]
[35] MNA [91] - [92].
Preparing a direction in a case where evidence of other sexual conduct is admitted requires a clear identification of the precise purpose for which the evidence is admitted. It is incumbent on the prosecutor to identify clearly and specifically the permissible purpose for which evidence of other sexual conduct is adduced.[36]
[36] JEL [219].
Where the State adduces different species of evidence of other sexual conduct which are capable of being put to different uses, a judge directing a jury should generally not attempt to deal compendiously with the different species of evidence. Specificity and precision are of vital importance in this area.[37]
[37] HTN [123].
The directions about evidence of other sexual conduct in this case
The judge gave a long and complicated direction in relation to evidence of other sexual conduct in this case. Given the grounds of appeal, it is necessary to set out that direction in some detail.
We have used paragraph numbers, headings, and sub-headings to assist the reader of these reasons to understand the substance of the directions given to the jury. However, in considering how the jury might have understood, or failed to comprehend, the direction, it is necessary to bear in mind that the directions were given orally, and the jury did not have the assistance of either a written direction or a jury aid. It is also necessary to bear in mind that the trial judge took the unorthodox (and generally undesirable) approach of giving directions about how evidence of other sexual conduct could be used before the judge had directed the jury about the elements of the charged offences.
Other conduct evidence, other detainment evidence and prior conviction
The judge said that she needed to give the jury a direction about how they can and cannot use evidence led by the State from three sources:[38]
[38] Trial ts 412.
1.The CEM evidence (a description of which is given in [85] below).
2.Evidence of J (a former student at the School) of the appellant's conduct as a grade 4 teacher in 1994 in:
(a)being overly affectionate with female students, demonstrated by his asking them to massage his neck and shoulders;
(b)using a metre ruler to flick up students' skirts;
(c)suggesting the girls remove their skirts and just wear bloomers during sports practice;
(d)putting his hands up under J's shirt and feeling around for her crop top while inside a small storeroom;
(e)making J sit on his lap in the small storeroom, causing her dress to ride up and expose her underwear, and placing his hands on J's inner thigh; and
(f)locking J in the small storeroom during recess and lunch, either alone or while the appellant was inside the storeroom with her.
3.Evidence of L (another former student at the School) of the appellant's conduct as a grade 5 teacher in 1996 in telling the girls to take their skirts off and run around in their bloomers during sports practice.
The judge said that she would refer to the evidence given by J and L, other than the evidence of being locked in the storeroom, as the other conduct evidence. The judge said that she would refer to J's evidence of being locked inside the storeroom as the other detainment evidence. Her Honour said that she would refer to the CEM evidence as the prior conviction.[39]
Identification of the use to which the State proposed to put the evidence
[39] Trial ts 412 - 413.
The trial judge identified the use to which the State sought to put what her Honour had defined as the 'other conduct evidence' in the following terms:[40]
Now, the State's case is that the other conduct evidence if you accept [J's] and, or [L's] evidence as reliable, accurate and truthful that one or more incident happened and you're satisfied that it was sexually motivated that it makes it more likely that [the appellant] is guilty of counts 2, 3 and 5 on the indictment with which he has been charged.
Because it shows that [the appellant] had a sexual interest in female children between the ages of nine to 12 years and had a propensity, or a tendency to act upon that sexual interest with female students at [the School] in that age group during the 1990s.
The State's case is also that the other conduct evidence tends to rebut any innocent explanations given by [the appellant] and makes it more likely that the touching in those counts if you're satisfied beyond reasonable doubt that the touching occurred was deliberate and sexually motivated in nature. (emphasis added)
[40] Trial ts 413.
The trial judge identified the use to which the State sought to put what her Honour had defined as the 'other detainment evidence' in the following terms:[41]
The State says to you that the other detainment evidence given by [J], if you find that evidence to be honest, accurate and reliable makes it more likely that [the appellant] is guilty of count 4 on the indictment.
Because it shows a tendency or propensity of [the appellant] to detain his students at [the School] in the small storeroom of his classroom, which tendency existed in the 1990s whilst he was a teacher at that school.
[41] Trial ts 413.
The trial judge identified the use to which the State sought to put what her Honour had defined as the 'prior conviction evidence' in the following terms:[42]
In relation to the prior conviction evidence the State relies on that as establishing an abiding sexual interest [the appellant] had in female children again, in the age bracket of nine to 12 years, which existed at the time of the alleged conduct the subject of the indictment, so during the course of the 1990s.
The State says that if you're satisfied beyond reasonable doubt of one or more of the acts alleged in counts 2, 3 and 5 - so we're talking about the indecent dealing counts - was done by the [appellant] then the prior conviction evidence, which establishes that he had an inclination to be sexually interested in female children of that age bracket makes it more likely that the touching the subject of those counts was deliberate and was sexually motivated. (emphasis added)
Directions as to assessment of the evidence
[42] Trial ts 414.
The trial judge noted that, when interviewed by police, the appellant had denied that events described in the 'other conduct evidence' and 'other detainment evidence' occurred. It was for the jury to assess the credibility of J and L's evidence. The judge directed the jury that, before they could act on the 'other conduct evidence' and 'other detainment evidence', they must be satisfied that it was true, accurate and reliable. The judge directed the jury that it was a matter for them to decide whether to accept that one or more of the incidents occurred. The judge said that the jury did not need to be satisfied beyond reasonable doubt that any incidents the subject of the 'other conduct evidence' and 'other detainment evidence' occurred because they were not the subject of any count on the indictment.[43]
[43] Trial ts 414.
Having given these directions about the assessment of the 'other conduct evidence' and 'other detainment evidence', the judge directed:[44]
It's for you to assess the evidence of both the prior conviction and the other conduct, and the other detainment evidence and decide whether you're satisfied that this shows that [the appellant] had the sexual interest and, or the propensity or tendency as the State has suggested at the time of the alleged offending against the complainants in counts 2, 3 and 5.
And if so whether this assists the State's case. It's also for you to assess the other detainment evidence and to decide whether you're satisfied that it shows a tendency as the State suggests at the time of the alleged offending in count 4.
That is in relation to [the appellant] detaining students by locking them in the storeroom. (emphasis added)
Directions as to the use to which the evidence could be put
[44] Trial ts 414 - 415.
Having given the above directions, the trial judge turned to direct the jury as to the use which they could make of the evidence in the following terms:[45]
Now, if you're so satisfied you can use the evidence of the prior conviction and the other conduct evidence or the other detainment evidence, which you accept when you're deciding whether the State has proven those relevant facts in the indictment beyond reasonable doubt.
The evidence of the prior conviction and the other conduct evidence, or the other detainment evidence is part of the facts and circumstances against which you are to judge whether [the appellant] committed the offences as charged.
As I've said, that evidence of other conduct and prior conviction evidence is only relevant to counts 2, 3 and 5 on the indictment. And the other detainment evidence is only relevant to count 4 on the indictment.
It would be open to you to find that the evidence of the prior conviction and, or the other conduct evidence increases the likelihood that [the appellant] had committed counts 2, 3 and 5 in the indictment.
And that the other detainment evidence increases the likelihood that [the appellant] committed count 4 on the indictment. None of this evidence can be considered when you're deliberating in respect of count 1 on the indictment. (emphasis added)
Directions as to the use which the evidence could not be put
[45] Trial ts 415.
The trial judge then turned to give the jury directions as to the uses which they could not make of the evidence, in the following terms:[46]
I now need to give you some specific directions of law about how you cannot use the evidence of the prior conviction and the other conduct evidence, and the other detainment evidence.
First, the evidence of the prior conviction and, or the other conduct evidence or the other detainment evidence, which you find to be truthful, accurate and reliable cannot in itself prove any of the charged offences.
Secondly, you can't use the evidence of the prior conviction and, or the other conduct evidence or the other detainment evidence in substitution for the evidence you've heard in this case about each of those counts on the indictment.
Thirdly, you must not reason that just because of a prior conviction and, or the other conduct evidence or the other detainment evidence that [the appellant] is, therefore, guilty of the counts as charged on the indictment.
Simply because [the appellant] has a conviction for possession of child exploitation material and, or has engaged in the conduct described by [J] or [L] in their evidence it doesn't necessarily follow that he committed the offences with which he has been charged in this case.
Just before [the appellant] on one occasion committed an act it doesn't necessarily mean that he did the same or a similar act on another occasion. People don't always act in accordance with their inclinations or tendencies at every opportunity.
Ultimate question identified
[46] Trial ts 415 - 416.
The judge concluded her directions in relation to the 'prior conviction', the 'other conduct evidence' and 'other detainment evidence' with the following observations:[47]
Ultimately for each count what you have to decide on the whole of the evidence, which you accept is whether or not the State has established beyond reasonable doubt that [the appellant] committed the specific act constituting that particular count.
You could not convict [the appellant] unless the State has satisfied you beyond reasonable doubt that he committed the specific act alleged against him in each count on the indictment.
And that depends upon your being satisfied beyond a reasonable doubt about the truthfulness, accuracy and reliability of the relevant complainant's evidence that the alleged act occurred.
'Z other conduct evidence' and 'F other conduct evidence'
[47] Trial ts 416.
The judge then turned to direct the jury in relation to evidence of other sexual conduct against Z and F which those complainants had described in their evidence. Her Honour described this evidence by reference to the names of the complainants. Anonymising the names, the references were to the 'Z other conduct evidence' and the 'F other conduct evidence'. The 'Z other conduct evidence' was of the appellant kissing Z's forehead and massaging Z's shoulders in class. The 'F other conduct evidence' was of the appellant massaging F's shoulders in class and using a one metre ruler to flick up F's school skirt and expose her underwear.[48]
[48] Trial ts 416 - 417.
As this aspect of the trial judge's directions is not the subject of challenge, our summary of the direction can be more truncated. The trial judge identified a number of possible contextual uses of the evidence which it is unnecessary to detail in these reasons. In the course of doing so, the trial judge said:[49]
The State says that this [Z] and [F] other conduct evidence is also relevant to show that [the appellant] had a sexual interest in [Z] and [F], whomever you're considering.
[49] Trial ts 418.
The judge directed the jury that the uses her Honour had identified were the only uses that could be made of the evidence. The judge gave the following directions as to the use which the jury must not make of the evidence:[50]
The [Z] and [F] other conduct evidence cannot in itself prove any of the offences set out in the indictment. You can't use that evidence in substitution in any way for the direct evidence of the incidents charged in relation to those offences.
Nor does it fill any gaps or make other evidence more reliable. Any finding you make in relation to the [Z] and [F] other conduct evidence cannot and must not lead automatically to a finding of guilt of any of the offences set out on the indictment.
If you find that [the appellant] did one or more of the [Z] or [F] other conduct you must not reason that he must, therefore, have committed one or more of the offences set out on the indictment.
It doesn't follow that because a person has on some prior occasion committed an act that he did the same, or a similar act on a later occasion, or is the type of person to have committed these offences. (emphasis added)
Cross-admissibility direction
[50] Trial ts 419.
The trial judge then directed the jury in relation to the multiple counts on the indictment. After giving general directions as to the need to consider each charge separately, her Honour gave the jury directions as to the cross-admissibility of the evidence on counts 3 and 5. Counts 3 and 5 concern the touching of the inner thighs of Z and F respectively.
The judge said that the State contended that a finding of guilt on count 3 or count 5 would establish that the appellant had:[51]
1.a sexual interest in female children aged approximately 9 to 10 years old; and
2.a propensity to act on this sexual interest by touching them on the thigh when the opportunity presented itself.
[51] Trial ts 420.
The judge said that a finding that the appellant was guilty of either count 3 or count 5 may well establish a sexual interest and a propensity or tendency as the State alleged, but that was a matter for the jury.[52]
[52] Trial ts 420.
The trial judge directed the jury that, if they acquitted the appellant of a charge, they could not use the evidence on that charge when considering any other charge. However, if the jury did not accept a complainant's evidence about the appellant's conduct the subject of one charge, that could influence the jury's assessment of that complainant's credibility about the events which are the subject of another charged offence.[53]
[53] Trial ts 421.
The trial judge also directed the jury that, if they were satisfied beyond reasonable doubt that the appellant was guilty of count 3 or count 5, the evidence on that charge may be relevant to the remaining charge. The judge directed that it was open to the jury to conclude that the occurrence of one charged indecent dealing incident involving touching of the thigh increased the likelihood that the appellant committed the very same touching in a separate charge of indecent dealing. However, it was only open to the jury to come to that conclusion if the jury were satisfied that:[54]
1.the occurrence of the incident in one charge established that the appellant had a sexual interest in female children of the approximate age of 9 to 10 years old in the 1990s, and a tendency to act on this sexual interest by touching the inner thighs of female students of that age when the opportunity arose; and
2.the appellant had this sexual interest and tendency at the time of the specific act the subject of the remaining count (whether it be count 3 or 5) that the jury was considering.
[54] Trial ts 421.
The judge then gave the jury the following directions about how the jury could not use the evidence on count 3 or count 5 if they found the appellant to be guilty of one of those counts:[55]
You can't use the evidence about count 3 or 5 where you are satisfied beyond reasonable doubt of [the appellant's] guilt in substitution for the evidence of the event relating to that remaining charge.
In other words, proof to your satisfaction of guilt upon count 3 or count 5 must not lead you automatically to a guilty verdict on the other charge.
You can't say that because [the appellant] did one of the indecent dealing acts involving touching the inner thigh that, therefore, he must be guilty of the remaining indecent dealing charge involving touching the inner thigh.
[55] Trial ts 422.
The trial judge then identified the ultimate question for the jury on each count, consistently with the direction quoted at [64] above.
The directions about the elements of the charged offences
After giving the directions about evidence of other sexual conduct noted above, the trial judge turned to direct the jury as to the elements of the charged offences.
Count 1: Sexual penetration of a child under the age of 13 years
The trial judge in effect directed the jury that, to find the appellant guilty of the sexual penetration offence charged in count 1, they needed to be satisfied, beyond reasonable doubt, that:[56]
1.the appellant was the person whose conduct E described;
2.the appellant penetrated E's vagina with his fingers; and
3.E was a child under the age of 13 years at the time.
Counts 2, 3 and 5: indecent dealing with a child under the age of 13 years
[56] Trial ts 423.
The trial judge in effect directed the jury that, to prove the indecent dealing charges in counts 2, 3 and 5, the State needed to prove, beyond reasonable doubt, that:[57]
1.the appellant was the person whose conduct the relevant complainant described;
2.the appellant dealt with the relevant complainant;
3.the dealing was indecent; and
4.the relevant complainant was under the age of 13 years at the time.
[57] Trial ts 427 - 428.
In relation to the second element, the trial judge directed the jury that 'to deal' with a child included 'touching' the child. The judge directed that touching must be a willed act, in other words deliberate. The jury had to consider whether the evidence proved beyond reasonable doubt that the appellant did the alleged act (touching E's breast in the case of count 2, touching Z's thigh in the case of count 3 and touching F's thigh in the case of count 5).[58]
[58] Trial ts 428 - 429.
The trial judge gave the jury the following directions in relation to the third element of indecency:[59]
So this third element that the State must prove beyond reasonable doubt is that the act, if you find there was an act, was indecent; that is, unbecoming, or offensive to common standards of propriety.
A touching which is sexual, and which contravenes a right-thinking person's standards can be indecent. An act that is sexual in nature committed in relation to a child would be indecent by those common standards, but that's a matter entirely for you.
In relation to count 2, I'd suggest to you that it's not in issue, if you're satisfied beyond reasonable doubt that the act occurred, namely the touching of the bare breast - or chest area, that the touching was indecent. But, as I said, that's a matter entirely for you.
If you're satisfied beyond reasonable doubt that the act alleged in counts 3 and 5 occurred, so namely the touching of the thigh, then you must consider whether that touching was deliberate and sexually motivated when you're considering whether it was indecent.
As you're aware, the State relies in this regard on the other conduct and the evidence of the prior conviction, okay? And I've given you my directions and explanation about how you can use that. But the State says you can use that when you're considering whether the touching in those counts was deliberate, and whether it was sexually motivated. (emphasis added)
[59] Trial ts 431.
In the course of summarising the State's case on counts 2, 3 and 5, the trial judge made the following observations:[60]
The State says the other conduct evidence is relevant to [counts 2, 3 and 5] by establishing a sexual interest the [appellant] had in female children of the age of the complainants, and a tendency to act on that interest during the relevant period of time.
The State says to you that … if you find that the other conduct occurred, and that it was sexually motivated, it does make it more likely that the acts alleged in counts 2, 3 and 5 happened.
Count 4: unlawful detention
[60] Trial ts 432.
The trial judge in effect directed the jury that, to find the appellant guilty of the unlawful detention offence charged in count 4, they needed to be satisfied, beyond reasonable doubt, that:[61]
1.the appellant was the person whose conduct F described;
2.the appellant detained F by locking her in the small storeroom off the classroom; and
3.the detention was unlawful.
[61] Trial ts 434 - 436.
In summarising the State's case in relation to the element of detention, the trial judge observed:[62]
The State also relies on [J's] other detainment evidence as establishing a propensity or an inclination of [the appellant] to lock students inside the storeroom during the 1990s, given her evidence that she was often kept inside that storeroom alone in 1994 when she was in [the appellant's] year 5 classroom.
[62] Trial ts 435.
Ground of appeal 1: admissibility of the CEM evidence
We turn to consider the merits of ground 1 of the appeal, which in effect contends that the CEM evidence was not admissible under s 31A of the Evidence Act as it did not have significant probative value.
The CEM evidence
The CEM evidence was adduced at trial in the form of an agreed statement of facts which was read to the jury.
The statement indicated that, on 1 February 2019, the appellant was convicted on his plea of guilty of one count of possessing child exploitation material. The appellant was arrested on 22 August 2018 when police executed a search warrant at the appellant's house. The appellant told police that there was a USB thumb drive plugged into his laptop which had some 'kid stuff' on it. Police located a series of images and videos, across the range of classification categories, depicting female children aged between 9 and 12 years in various states of undress, sexual poses or engaging in sexual activity. The appellant admitted that he had been looking at child exploitation material on computers since about 2005.[63]
Admission of the CEM evidence
[63] Trial ts 343 - 344.
The State's application to admit the CEM evidence under s 31A of the Evidence Act was dealt with at a directions hearing before trial.
On 31 March 2020, Gillan DCJ ruled that the evidence was admissible under that section for the limited purpose of establishing that the touching alleged in relation to what became counts 2, 3 and 5 was indecent. Her Honour in effect held that the CEM evidence did not have significant probative value in relation to the issue of whether the touching occurred, and this was conceded by the State. However, her Honour ruled that, once it was established the touching occurred, the CEM evidence did have significant probative value as to whether the touching was deliberate (as opposed to accidental) and sexually motivated.[64] Gillan DCJ applied the decision of this court in Jackson in reaching that conclusion.
[64] Trial ts 39 - 40.
Gillan DCJ also concluded that the probative value of the CEM 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.[65] In the course of reaching that conclusion, her Honour took account of the way in which a direction given by the trial judge could neutralise the risk of an unfair trial. In that regard, her Honour observed:[66]
In my view, it should be possible for a judge instructing a reasonable jury to craft a direction that makes it clear the very limited purposes to which this evidence relates. Particularly in the context of the very limited number of counts to which it relates. And to ensure that a jury is properly advised that it can't be used vis-a-vis the other counts on the indictment. Similarly, the jury would be properly instructed not to simply engage in inappropriate propensity reasoning.
Appellant's submissions
[65] Trial ts 40 - 41.
[66] Trial ts 41.
The appellant's submissions in support of ground 1 focus on the temporal difference between the charged conduct and the CEM evidence. The appellant was found in possession of child exploitation material in 2018, and at that time admitted that he had been looking at child exploitation material on computers since about 2005. The alleged offending occurred in 1997 or 1998.
The appellant submits that there was, therefore, a 7‑year gap between the time of the charged conduct and the appellant's interest in child exploitation material. The appellant contends:[67]
d. There was no expert evidence before the Court to suggest that an interest in watching CEM starts in young adult men, for example, and continues throughout their life or that it is impossible or improbable for adult men to develop an interest later on their adulthood.
e. There was no evidence of the reasons why or when precisely the Appellant developed an interest in accessing the CEM.
f. It was reasonably open to infer that the Appellant after years of teaching young adolescent girls, developed an interest in them which became sexual in his mind, the sexual nature of which may not have been manifest at the time of the trial conduct.
[67] Appellant's submissions, par 55.
In oral submissions, counsel for the appellant submitted, in effect, that ground 1 turned on the narrow point of whether the absence of any evidence that the appellant viewed child exploitation material at the time of the alleged offending denied the CEM evidence significant probative value.[68]
Disposition of ground 1
[68] Appeal ts 8 - 10.
The fact that the accused in Jackson viewed child exploitation material at a time proximate to the charged offences was of importance to this court's conclusion in that case that the evidence had significant probative value. The probative value of the evidence at issue in Jackson lay in its tendency to prove that, at a time substantially contemporaneous with the charged conduct in that case, the accused had a sexual interest in pre-adolescent girls.[69]
[69] Jackson [61], [65], [66].
However, in the circumstances of the present case the passage of time between the alleged offending against E, Z and F and the first time when there was evidence of the appellant viewing child exploitation material does not deprive the CEM evidence of its significant probative value. There are several factors supporting that conclusion:
1.The appellant indicated in the EROI that he was born in March 1959,[70] and so was:
(a)37 - 39 years old at the time of the alleged offending against E, Z and F in 1997 and 1998;
(b)about 46 years old when he began viewing child exploitation material on a computer in 2005; and
(c)59 years old when found in possession of child exploitation material in 2018.
2.The child exploitation material found in the appellant's possession in 2018 contained hundreds of images showing girls in the age range of 9 to 12 years.
3.The child exploitation material found in the appellant's possession in 2018 included evidence depicting very serious sexual abuse of girls aged between 9 and 12 years.
4.The expression of the appellant's interest in child exploitation material through the viewing of child exploitation material persisted, on his own admission, for about 13 years from 2005 to 2018.
[70] EROI ts 2 - 3.
The CEM evidence indicated a strong and persistent sexual interest by a mature adult in female children aged 9 to 12 years. Common human experience indicates that the objects of a mature adult's sexual attraction are unlikely to radically change in middle age. A jury could reasonably infer that a depraved sexual attraction demonstrated by the viewing of child exploitation material at the age of about 46 did not suddenly emerge at that time, and was present when the appellant was in his late 30s. The fact that he commenced looking at child exploitation material on computers in 2005 is explicable by technological developments up to that time which increased the availability and capacity of computers and expanded the scope of material available on the internet. A regrettable accompaniment to that technological development has been the expansion of the availability of child exploitation material. The lesser opportunity to view child exploitation material on computers in the mid‑late 1990s and early 2000s is a more likely explanation for the appellant starting to view that material in 2005 than a lack of sexual interest in children earlier than that time.
The time between the other sexual conduct and the charged conduct will be a relevant factor to consider when determining whether evidence of the other sexual conduct has significant probative value. However, it is not the only factor to consider and is not necessarily controlling. As Buss P (Mazza and Beech JJA agreeing) observed in Wark v The State of Western Australia:[71]
I accept that the length of an interval between the circumstances of propensity evidence and the circumstances of the charged offence is relevant and, in a particular case, may be decisive in determining whether the interval materially diminishes the capacity of the propensity evidence to be evidence of an inclination or predisposition at the time of the charged offence. However, the significance of the length of the interval must be evaluated in the context of all of the circumstances of the particular case.
Significant probative value of CEM evidence in relation to counts 3 and 5
[71] Wark v The State of Western Australia [2020] WASCA 19; (2020) WAR 365 [326], [525], [528], applied in Clark v Neff [2021] WASCA 209 [30].
In our view, in the circumstances of the present case, the CEM evidence did have significant probative value in tending to establish that, if the appellant touched the thighs of Z and F as alleged in counts 3 and 5, such touching was deliberate and sexually motivated.
The alleged conduct which is the subject of counts 3 and 5 of the indictment was not of such an inherently sexual character as to be indecent regardless of the motivation for the touching. The touching of a child's thigh of the kind alleged in this case would be indecent only if deliberate and sexually motivated. The appellant's motive was relevant in that a sexual motive may confer the quality of indecency upon an act which might be held not to be indecent if differently explained. Alternatively, the appellant's motive may render innocent an act which might be regarded as indecent if left unexplained.[72]
[72] Jackson [57] - [58]; HTD v The State of Western Australia (No 2) [2019] WASCA 39 [23], [84].
In relation to count 3, Z's evidence was that she and the appellant were sitting on the same seat of a school bus on the way to swimming lessons. She was wearing a one-piece bathing costume.[73] Z described the appellant rubbing her leg up and down near her thigh and saying, 'Tell me to stop' as he did so. The appellant stopped when Z said, 'Could you stop?'.[74] In cross-examination, the appellant's trial counsel put to Z that the appellant was poking her when she was not looking, as part of a game played to the amusement of other children on the bus.[75] In his EROI, the appellant denied the incident, and effectively adopted his written response to a complaint made at the time of the incident that he was playing a game with Z by poking her and pretending it was not him.[76]
[73] Trial ts 199 - 200.
[74] Trial ts 200 - 201.
[75] Trial ts 217 - 218.
[76] EROI ts 86 - 87, 91 - 93.
In relation to count 5, F's evidence was that she was sitting on the appellant's lap during silent reading in class. She was wearing a skirt, underwear and a polo shirt. F's evidence was that:[77]
His hand went up my leg - he had his hand resting on there first, on my leg - thigh. And then he rubbed the inner bit of my thigh … [u]nder my skirt.
F demonstrated rubbing with her hand at about halfway up her thigh from her knee towards her hip and inside of her thigh.[78] She said the rubbing continued for about 30 seconds, when she jumped off the appellant's lap and ran to the toilet.[79] In cross-examination, F said that she and the appellant were sitting behind his desk when this occurred, and rejected the proposition that the appellant was not rubbing her thigh when she was sitting on his lap.[80] In his EROI, the appellant said that he did not recall anytime he would have had the opportunity or the desire to do anything like stroking F's inner thigh under her skirt.[81]
[77] Trial ts 228.
[78] Trial ts 228.
[79] Trial ts 229.
[80] Trial ts 241 - 242.
[81] EROI ts 111.
The issue of whether touching Z and F's thighs (if it occurred) was indecent, was a live issue at trial. In his short opening statement, the appellant's trial counsel observed:[82]
If there's another explanation for what could have happened, if something was not deliberate, in terms of the indecent dealings, … you might think, 'Well, I can't find beyond reasonable doubt that these charges are true or proved.'
[82] Trial ts 137.
In closing submissions, the appellant's trial counsel said that the appellant admitted there was some touching of Z on the school bus.[83] He addressed the issue of whether the jury could be satisfied that the touching was of the inner thigh as opposed to the poking described by the appellant in the EROI.[84] Counsel concluded this aspect of his submission by observing:[85]
What your job boils down to is, [the appellant] admits there was touching. Your job is to decide where it happened, was it indecent, was it sexually motivated, is he guilty?
Based on [School] records, he's suggesting that you couldn't find that, that it was indecent, that it was inner thigh. If it was outer thigh, or leg or knee and it was poking, or if it was touching, very different situation. You might think it was unwise of [the appellant], inappropriate, lack of judgment. But does that make it criminal behaviour that's indecent dealings with a child?
[83] Closing ts 29.
[84] Closing ts 29 - 30.
[85] Closing ts 30.
While the appellant's trial counsel did not deal with the issue of sexual motivation in relation to count 5, he did refer to the impact of the passage of time on the memory of a person who was 9 to 10 years old at the time of an event they are recalling.[86]
[86] Closing ts 34.
In our view, evidence of the appellant's sexual interest in girls aged 9 to 12 years at the time of the touching of Z's and F's thighs alleged by counts 3 and 5 would have significant probative value in relation to the question of whether the touching was indecent. It was a live issue at trial as to whether the appellant deliberately touched Z and F's thighs with a sexual motivation. The jury might have accepted Z's and F's evidence that the accused touched their thighs on the occasions alleged, even if they were not satisfied beyond reasonable doubt that every aspect of the touching described by those complainants was reliable. The general circumstances described by Z and F (sitting by the appellant on a bus seat or sitting on the appellant's lap) were capable of raising a doubt in the jury's mind as to whether the appellant might have touched their thighs inadvertently. The evidence might also leave open a possibility that the appellant might have touched the complainants' thighs without sexual motivation, in a way which was therefore not indecent. The CEM evidence was capable of resolving any doubts that the jury might have had as to whether the complainants, at the age of 9 or 10 years, might have misconstrued innocent conduct by the appellant. The CEM evidence was capable of resolving any doubts about the deliberateness and sexual motivation of the touching, if it was found to have occurred, so as to resolve any doubts the jury might have had as to whether the touching alleged by counts 3 and 5 was indecent. That potential work gave the CEM evidence significant probative value for the reasons explained in Jackson,[87] set out at [36] above. In the circumstances of the present case, that significant probative value is not lost by reason of the time between the manifestation of the appellant's sexual interest in girls of about the complainant's age through viewing child exploitation material and the touching alleged in counts 3 and 5.
Significant probative value of CEM evidence in relation to count 2
[87] Jackson [61].
The position is different in relation to the indecent dealing alleged in count 2. As the State properly concedes on appeal,[88] there could be no genuine dispute as to the indecency of the conduct alleged in relation to count 2, and the CEM evidence did not have significant probative value in relation to that count. The appellant's trial counsel conceded in his closing submission that there could be no issue of an accidental touching and no question that the alleged touching was a sexual offence if it occurred.[89] However, for the above reasons, the CEM evidence was admissible in the appellant's trial by reason of its significant probative value in relation to the indecency element of counts 3 and 5. The question of the directions given as to the potential use of the CEM evidence in relation to count 2 is best considered in dealing with ground of appeal 2.
Conclusion as to ground 1
[88] Respondent's submissions, par 15.
[89] Trial ts 23.
For the above reasons, while we would grant leave to appeal on ground 1 of the appeal, in our view, the ground is not established. The CEM evidence was properly admitted at the appellant's trial.
Ground of appeal 2: directions as to use of CEM evidence
Ground 2 contends that the trial judge misdirected the jury as to the use it could make of the CEM evidence. In substance, the appellant contends that a miscarriage of justice arose from the failure of the trial judge to direct the jury as to the limited way in which the CEM evidence could be used.
There is no contest in this appeal that, absent an appropriate direction from the trial judge, there was a perceptible risk that the jury would use the CEM evidence for an impermissible propensity purpose. The judge was required, as an incident of the duty to ensure a fair trial for the appellant, to direct the jury in a way that would avoid that risk.
One risk was that the jury would use the CEM evidence to reason that, by virtue of his interest in girls aged 9 to 12 years, the appellant was a person who was more likely to have committed the sexual penetration offence alleged in count 1 of the indictment. However, that risk was addressed by the directions that the trial judge gave to the effect that the CEM evidence was relevant only to counts 2, 3 and 5 (see for example, the direction quoted at [62] above).
However, it was also necessary to direct the jury as to the limited way the CEM evidence could be used in considering counts 2, 3 and 5, which charged the appellant with indecent dealing offences. The general principle explained by Beech JA in the passage of LNV quoted at [45] above was engaged. In order to avoid a miscarriage of justice, it was necessary in this case for the trial judge to direct the jury as to the permissible and impermissible use of the CEM evidence in relation to counts 2, 3 and 5 of the indictment. This required the jury to be given a direction of the kind identified by this court in Jackson, referred to at [49] above. Such a direction was expressly contemplated by Gillan DCJ when ruling the CEM evidence to be admissible, in the passage quoted at [88] above.
The question on appeal is whether the trial judge's direction to the jury properly identified the permissible and impermissible uses of the CEM evidence in relation to counts 2, 3 and 5 so as to avoid the perceptible risk of a miscarriage of justice.
Direction as to count 2
In our view, the trial judge's direction was clearly inadequate so far as it related to count 2 on the indictment. Given the State's concession noted at [104] above, there was no permissible use of the CEM evidence in relation to count 2 as the evidence had no significant probative value in relation to that count.
Before charging the jury, the trial judge recognised that the CEM evidence had no work to do as propensity evidence in respect of count 2. In the absence of the jury, her Honour proposed to counsel giving a direction limiting the permissible use of the CEM evidence to counts 3 and 5. The prosecutor agreed that this was the correct approach.[90] However, the following day the trial judge, in discussions with counsel, expressed some difficulty in perceiving the significant probative value the CEM evidence had in relations to counts 3 and 5.[91] Unfortunately, the trial judge did not give effect to the view which she (in our view correctly) expressed as to the relevance of the CEM evidence to the offence charged in count 2 of the indictment.
[90] Trial ts 373 - 374.
[91] Trial ts 388 - 390.
It may be that the trial judge's ultimate decision to direct the jury that the CEM evidence could be used in relation to count 2 may have occasioned no miscarriage of justice if the direction had properly limited the use of that evidence in the manner contemplated in Jackson. That is, there may have been no miscarriage of justice if the judge had directed the jury that they were not to use the CEM evidence in deciding whether the State had proved the touching alleged in count 2 had occurred and could only use the CEM evidence for determining whether the touching proved by other evidence was indecent. That is because there was no question or dispute that the touching alleged in count 2 was inherently deliberate, sexually motivated and therefore indecent. There would be no material irregularity or unfairness in the jury using the CEM evidence only for the purpose of supporting the inevitable conclusion that the touching alleged in count 2, if established by other evidence, was indecent.
However, as we will discuss in relation to counts 3 and 5, the direction did not properly confine the jury to using the CEM evidence for the purpose of assessing whether the alleged touching was indecent. Therefore, a miscarriage of justice is established in relation to the appellant's conviction of count 2.
Direction as to counts 2, 3 and 5
In our view, the direction given by the trial judge did not properly identify for the jury the permissible and impermissible use of the CEM evidence in relation to counts 3 and 5. Nor did it preclude the jury from relying on the CEM evidence as making it more likely that the appellant touched E in the manner alleged in relation to count 2.
The problem appears to have arisen largely because the trial judge decided to combine the direction in relation to the use of the CEM evidence with the direction in relation to what her Honour described as the 'other conduct evidence' and the 'other detainment evidence'. As noted at [52] above, this court has recognised the dangers of a judge attempting to deal compendiously with various species of evidence of other sexual conduct which is capable of being put to different uses.[92]
[92] HTN [123].
The CEM evidence and the 'other conduct evidence' were both expressed to be admissible only in relation to counts 2, 3 and 5. However, the work that the two classes of evidence had to do was different in an important respect. The 'other conduct evidence' was relied on as demonstrating a sexual interest in female students aged between 9 and 12 years, and a propensity to act on that interest with students at the school during the 1990s, as well as the issue of indecency. The 'other conduct evidence' could be relied on as making it more likely that the touching alleged in counts 2, 3 and 5 occurred, as well as making it more likely that the touching was indecent. The CEM evidence could be used only for the latter, and not the former purpose.
Similarly, the 'other detainment evidence' was relied on by the State to show that the appellant had a propensity to detain his students at the School in a small storeroom and to make it more likely that he had done so on the occasion alleged in count 4. That is, the 'other detainment evidence' could be used to show a tendency that made it more likely that the appellant had done the physical acts alleged in count 4.
The trial judge's direction, which melded the directions together, did not make apparent the different character of the permissible uses of the CEM evidence, on the one hand, and the 'other conduct evidence' and 'other detainment evidence' on the other hand.
The passage of the judge's charge quoted at [59] above identifies a use which the State sought to make of the CEM evidence, which does not go beyond assessing whether the acts alleged in relation to counts 2, 3 and 5 were indecent. However, the judge is not at this point in her charge giving the jury a direction from the court as to the permissible and impermissible uses of the evidence.
The State points to the emphasised words in the following passage of the judge's own direction as to permissible uses of the CEM evidence (quoted at [62] above) as adopting the judge's description of what the prosecutor had said:
As I've said, that evidence of other conduct and prior conviction evidence is only relevant to counts 2, 3 and 5 on the indictment.
Senior counsel for the State submits that the words 'as I've said' would have been taken by the jury to be the judge adopting what the prosecutor had to say about how the evidence could be used.[93] In our view, that submission attributes too great a capacity of the jurors listening to a long, complex and technical direction to detect subtleties in the trial judge's language. This would have been a very challenging direction for the jury to have comprehended, due to its length, the extensive use of defined terms (to which lawyers are accustomed but which are foreign to many jurors) and the absence of any written aid. The jury's comprehension of the direction would have been further challenged by the directions as to the use of evidence of other sexual conduct being given before the legal framework as to what the jurors needed to decide was established by the judge's directions as to the elements of the offences. Jurors faced with that challenging task cannot, in our view, be expected to draw from the aside, 'as I have said', the meaning which the State seeks to attribute to those words.
[93] Appeal ts 38 - 39.
In any event, the passage quoted at [59] above does not tell the jury that the use which the State sought to make of the CEM evidence is the only permissible use of that evidence or that other uses are impermissible. It does not tell the jury that they cannot have regard to the CEM evidence for the purposes of determining whether the appellant touched the complainants in the manner alleged in relation to counts 2, 3 and 5.
Further, the only substantive statement in the directions from the judge as to the permissible use of the CEM evidence (reproduced at [62] above) was that:
It would be open to you to find that the evidence of the prior conviction and, or the other conduct evidence increases the likelihood that [the appellant] had committed counts 2, 3 and 5 in the indictment.
This direction does not indicate to the jury that they must not use the CEM evidence in considering whether the State has proven the alleged touching occurred. The fact that the same direction is given for the CEM evidence and the 'other conduct evidence', which can be used for that purpose, is a contextual indicator that the direction did not prohibit that use.
The trial judge's directions as to the uses which the CEM evidence could not be put, quoted at [63] above, are generic directions of the kind that might be expected where a general propensity use of evidence is permissible. There is nothing in those directions which prohibits the jury from using the CEM evidence to reason that, because he has a sexual interest in girls aged 9 to 12 years, the appellant is the kind of person who is likely to have engaged in the touching conduct alleged in relation to counts 2, 3 and 5 on the indictment. Again, the fact that the same direction is given in relation to the 'other conduct evidence' which can be used for that purpose is a contextual indicator that the direction does not prohibit the same use of the CEM evidence.
The passage quoted at [79] above in the judge's direction about the elements of the offences in essence refers back to the previous directions and the use which the State invited the jury to make of the CEM evidence. It is not a direction, given with the authority of the judge, as to the impermissible use of the evidence.
In our view, the trial judge's direction, considered as a whole, did not identify the permissible and impermissible uses to which the jury could put the CEM evidence in relation to counts 2, 3 and 5. It did not address the perceptible risk that the jury would reason that, because the appellant was a person with a sexual interest in girls aged 9 to 12 years, as demonstrated by the CEM evidence, he was the kind of person who was likely to have touched the complainants in the manner alleged in relation to counts 2, 3 and 5.
Conclusion as to ground 2
For the above reasons, in our view ground 2 is established in relation to counts 2, 3 and 5.
Ground of appeal 3: use of evidence beyond that proposed by the State
Ground 3 contends that an error or miscarriage arose from the judge directing the jury that they could use the CEM evidence, the 'other conduct evidence' and the 'other detainment evidence' in a manner that was inconsistent with and went beyond the State's case.
CEM evidence
It is unnecessary to determine ground 3 so far as it relates to the CEM evidence. We have found that the trial judge's direction did not make it clear to the jury that they could not use the CEM evidence for the purpose of determining whether the State had proved the appellant touched the complainants in the manner alleged in relation to counts 2, 3 and 5. The miscarriage arose not because the trial judge's direction proposed a use of the CEM evidence which went beyond that proposed by the State, but because the direction failed to identify impermissible uses of that evidence for the jury in circumstances where there was a perceptible risk that the jury would use the evidence for impermissible purposes unless directed otherwise.
Other conduct evidence
The trial judge's direction noted at [57] above indicated that the State sought to use the 'other conduct evidence' both as making it more likely that the touching alleged in relation to counts 2, 3 and 5 occurred and as making it more likely that the touching was sexually motivated and deliberate.
The prosecutor did not refer to the evidence of J or L, whose evidence comprised the 'other conduct evidence' identified by the trial judge, in his opening address to the jury. The prosecutor's closing address made reference to the evidence of J,[94] but the only thing said about the use which the jury could make of that evidence was:
I suggest you can accept that it all happened as she said; that is; [J]. That all of that conduct showed a sexual interest in girls of that age, nine to 12 years, and particularly in her. She was nine to 10 years of age. How do you use it for the charges? Well, particularly for counts 2 to 3, which are the touchings on the thighs, you can use it to consider whether those acts of touching on the thighs were done deliberately and whether they were done with a sexual intent.
The prosecutor's closing submissions to the jury did not make any reference to the evidence of L.
[94] Closing ts 4 - 5.
However, prior to the commencement of the trial, Lemonis DCJ had ruled on the admissibility of what the trial judge referred to as the 'other conduct evidence' under s 31A of the Evidence Act. His Honour ruled that the evidence could be relied on as showing it was more likely that the appellant did the acts which were the subject of what became counts 2, 3 and 5 in the indictment and that it was more likely that the acts were deliberate and sexually motivated.[95]
[95] Trial ts 81.
In discussions between the trial judge and counsel about the directions, the prosecutor agreed that the 'other conduct evidence' both made it more likely that the acts occurred and were done deliberately and with sexual motivation.[96] The trial judge indicated to counsel that she proposed to direct the jury in relation to J's and L's evidence in accordance with Lemonis DCJ's ruling as to how the 'other conduct evidence' could be used.[97] Despite being given an opportunity to do so, the appellant's trial counsel took no issue with this approach.[98]
[96] Trial ts 386.
[97] Trial ts 387.
[98] Trial ts 391.
The use which the State proposed for what the trial judge identified as the 'other conduct evidence' was never clearly articulated by the prosecutor before the jury. However, the use which the State proposed could be made of that evidence was made clear in the pre-trial application before Lemonis DCJ.[99] The State never retreated from that proposed use. The trial judge informed counsel of her proposed direction as to the use of the 'other conduct evidence' after the close of evidence but before counsel's addresses. The prosecutor confirmed that this use was proposed, and the appellant's trial counsel took no objection to the proposed course.
[99] See trial ts 79.
In these circumstances, we are not persuaded that the trial judge's direction as to the use of the 'other conduct evidence' was inconsistent with or went beyond the State's case. Even if the use which the trial judge said was permissible went beyond what the prosecutor had said to the jury, the appellant's trial counsel understood from the directions hearing before Lemonis DCJ and the trial judge's discussions with counsel as to the permissible use which was alleged. There was no unfairness to the appellant, or material irregularity in the trial, in the way the judge directed the jury as to the use of the 'other conduct evidence'. In our view, no wrong decision on a question of law or miscarriage of justice has been established.
Other detainment evidence
The trial judge's direction as to the 'other detainment evidence' noted at [58] above indicated that the evidence of J as to being locked in the storeroom could be used to show a propensity of the appellant which made it more likely that the conduct charged in count 4 (the detention of F in the storeroom) occurred.
The prosecutor did not refer to J's evidence of being locked in the storeroom in either his opening or closing submissions. However, Lemonis DCJ's pre-trial ruling also held that J's evidence as to being locked in the storeroom could be used to show it was more likely that the same conduct occurred with F.[100]
[100] Trial ts 79, 82.
Our analysis in relation to the 'other conduct evidence' applies equally to the 'other detainment evidence'. Although the prosecutor did not address the jury on the use which could be made of that evidence, he did not retreat from the use indicated at the directions hearing before Lemonis DCJ. The trial judge indicated that she would direct the jury in accordance with Lemonis DCJ's ruling, and the appellant's trial counsel did not object to that course. In these circumstances, we are not persuaded that the trial judge's direction as to the use of the 'other detainment evidence' was inconsistent with or went beyond the State's case. There was no unfairness to the appellant, or material irregularity in the trial, in the way the judge directed the jury as to the use of the 'other detainment evidence'. In our view, no wrong decision on a question of law or miscarriage of justice has been established.
Conclusion as to ground 3
In fairness to counsel, ground 3 was formulated by the court at the hearing of the appeal rather than by the appellant's counsel of her own motion. Counsel for the State was prepared to respond to the new ground at the hearing of the appeal and did not seek a further opportunity to respond to it after the hearing. However, his opportunity to consider the issues raised by the ground was limited. Ultimately, we are not persuaded that ground 3 is established.
Disposition of the appeal
For the above reasons, in our view the directions of the trial judge as to the use of the CEM evidence occasioned a miscarriage of justice in relation to counts 2, 3 and 5 on the indictment.
In these circumstances, this court must allow the appeal and set aside the convictions on counts 2, 3 and 5 unless it considers that no substantial miscarriage of justice has occurred. The State's written and oral submissions did not contend that this 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA) should be applied.
Under s 30(5) of the Criminal Appeals Act, this court must set aside the convictions for counts 2, 3 and 5 and either order a new trial or enter a judgment of acquittal for those offences. In the circumstances of this case, a new trial on counts 2, 3 and 5 should be ordered. The appellant's case accepted this to be the appropriate order.[101]
[101] Orders wanted, par 3.
If the appeal were allowed, counsel for the appellant sought orders setting aside the appellant's convictions of the sexual penetration of E charged in count 1 and the unlawful detention of F charged in count 4.
In our view, there was no miscarriage of justice in the trial of the appellant on counts 1 or 4. The trial judge's directions did make it clear that the CEM evidence was relevant only in relation to counts 2, 3 and 5 and could not be considered when deliberating on counts 1 and 4. The trial judge's direction also made it clear that the evidence on counts 2, 3 and 5 was not cross-admissible on counts 1 or 4, which each were to be separately considered.
Counsel for the appellant refers to the fact that E was the complainant on both counts 1 and 2, and F was the complainant on both counts 3 and 4.[102] However, there was nothing about the use of the CEM evidence allowed by the trial judge's direction on counts 2, 3 or 5 which would have allowed that evidence to be used to bolster the complainant's credibility on those or any other counts. To the contrary, the trial judge's direction quoted at [64] above instructed the jury that ultimately the question was whether the jury were satisfied of the truthfulness, accuracy and reliability of the complainants' evidence.
[102] Appeal ts 28, 30.
Therefore, in our view there is no basis for this court to set aside the appellant's conviction on counts 1 or 4 on the indictment.
The State accepted that the consequence of setting aside the convictions on counts 2, 3 and 5 is that the appellant remains subject to the head sentence of 3 years 6 months' immediate imprisonment imposed on count 1 and the concurrent sentence of 12 months' imprisonment imposed on count 4.
The State submitted that neither s 30(6) nor s 41(2) of the Criminal Appeals Act empower this court to adjust the order that the sentence for count 4 be served concurrently with the sentence for count 1.[103] The State's submission is correct. Section 30(6) in its terms only applies to allow the adjustment of other sentences where this court enters a judgment of acquittal or enters a conviction of an alternative offence. It does not apply where a conviction is set aside and a new trial is ordered. Section 41(2), in its context, is concerned only with appeals against sentence.
[103] Appeal ts 50 - 53.
Orders
For the above reasons, we would make the following orders in the appeal:
1.Leave to appeal is granted on grounds 1, 2 and 3.
2.The appeal is allowed in relation to counts 2, 3 and 5.
3.The appellant's convictions of counts 2, 3 and 5 on District Court of Western Australia indictment 1851 of 2019 (as amended on 21 April 2020) (Indictment) are set aside.
4.A new trial is ordered on counts 2, 3 and 5 on the Indictment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
22 DECEMBER 2022
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