LBH v The State of Western Australia [No 2] - [2023] WASCA 99

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LBH -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2023] WASCA 99
CORAM:   BUSS P
HALL JA
MORRISON AJA

HEARD:   2 MAY 2023
DELIVERED          :   27 JUNE 2023
FILE NO/S:   CACR 55 of 2022
BETWEEN:   LBH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PRIOR DCJ
File Number            :   IND XX OF XXXX

Catchwords:

Criminal law - Appeal against conviction - Child sex offences - Propensity evidence - Section 31A Evidence Act 1906 (WA) - Cross-admissibility of evidence - Whether evidence had a significant probative value

Legislation:

Evidence Act 1906 (WA), s 31A

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr D S Johnson
Respondent	:	Ms K C Cook

Solicitors:

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

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

RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285

JUDGMENT OF THE COURT:

The appellant was convicted after trial of one count of indecent assault contrary to s 323 of the Criminal Code (count 3) and three counts of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code. He seeks leave to appeal against those convictions.
There are two grounds of appeal. The first ground contends, in essence, that the trial judge erred by dismissing an application for a separate trial of count 3. The second ground contends that the trial judge erred by ordering that the evidence in relation to count 3 was admissible in respect of the other counts as propensity evidence. It was conceded at the hearing of the appeal that if the evidence in question on ground 2 was admissible then it could not reasonably be suggested that a separate trial was appropriate and ground 1 would fall away.[1]
[1] Appeal ts 25, 44.
For the reasons that follow neither of the grounds has a reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.

Charges and procedural history

The appellant was originally charged with eight counts of indecent dealing relating to three complainants. On 10 November 2020 an amended indictment was filed which contained an additional count relating to a further complainant. This count became count 3 on the indictment and was an allegation of indecent assault. Accordingly, the amended indictment contained nine counts which were as follows:
(1)On 6 July 2016 [the appellant] indecently dealt with [CS], a child of or over the age of 13 years and under the age of 16 years, by touching her thigh.
(2)On 6 July 2016 [the appellant] indecently dealt with [CS], a child of or over the age of 13 years and under the age of 16 years, by touching her waist.
(3)On 1 December 2016 [the appellant] unlawfully and indecently assaulted [AS] by pressing his penis against her body.
(4)On a date unknown between 30 April 2019 and 31 July 2019 [the appellant] indecently dealt with [MC], a child under the age of 13 years, by touching her thigh.
(5)On a date unknown between 31 August 2019 and 24 December 2019 [the appellant] indecently dealt with [MC], a child under the age of 13 years, by placing [MC's] hand on her vagina.
(6)On another date unknown between 31 August 2019 and 24 December 2019 [the appellant] indecently dealt with [MC], a child under the age of 13 years, by placing [MC's] hand on her vagina.
(7)On the same date as in count 6, [the appellant] indecently dealt with [MC], a child under the age of 13 years, by rubbing her vagina.
(8)On another date unknown between 31 August 2019 and 24 December 2019 [the appellant] indecently dealt with [MC], a child under the age of 13 years, by placing her hand on his penis.
(9)On a date unknown between 1 November 2019 and 24 December 2019 [the appellant] indecently dealt with [OC], a child under the age of 13 years, by placing [OC's] hand on her vagina.
The complainant in counts 1 and 2, CS, is the younger sister of the complainant on count 3, AS. The complainant in counts 4, 5, 6, 7 and 8, MC, is the younger sister of the complainant in count 9, OC.
At a directions hearing held on 20 November 2020 the State sought a ruling that the evidence on each of the counts was cross‑admissible in respect of the other counts. The only issue in dispute was whether the evidence in respect of count 3 was cross‑admissible in respect of the other counts. At the conclusion of the hearing, Herron DCJ ordered that the evidence in respect of count 3 was cross‑admissible in respect of the remaining counts on the indictment.[2] The reasons for that decision will be referred to later.
[2] ts 29.
A trial commenced on 30 November 2020 before Herron DCJ and a jury. At the conclusion of that trial the appellant was acquitted of counts 2, 4 and 9. The jury were unable to reach a verdict in respect of the remaining counts.[3]
[3] ts 663 - 665.
A second trial of the remaining counts on the indictment commenced on 30 May 2022 before Prior DCJ. At the conclusion of that trial the appellant was found guilty of counts 3, 5, 6 and 7. The jury were unable to reach verdicts in respect of counts 1 and 8, and those counts were later discontinued.[4]
[4] ts 1438 - 1440; ts 1487 - 1488.
This appeal is concerned with the convictions following the second trial. For ease of reference we will refer to the second trial as 'the trial'.

The prosecution case

It is only necessary to refer to the case as it concerned the counts dealt with at the trial, that is, counts 1, 3, 5, 6, 7 and 8.
CS and AS are the daughters of a couple who were, prior to the occurrence of these events, friends of the appellant. The appellant was, in particular, a close friend of the father. The family of CS and AS lived on the same street as the appellant, a few houses away from his own home.[5]
[5] ts 723.
From the time CS was 12 years old and AS was 11 years old, the appellant had engaged in private messaging with both girls via Facebook Messenger. The appellant was in his early 40s when he started messaging the girls. This messaging occurred on a fairly frequent basis and was unknown to the parents of the girls. It continued over a period of nearly six years. The prosecution case was that by these messages the appellant held himself out to be a friend who they could rely on and contact without their parents' knowledge.[6]
[6] ts 723.
On 6 July 2016, when CS was 13 years old, she contacted the appellant via Facebook Messenger to ask him to give her a lift home. The appellant agreed on the proviso that CS would not tell the appellant's then-partner. The appellant picked up CS and drove her home. The prosecution case was that on the drive home the appellant began telling CS how she was well developed for her age. As he did so he placed his hand on CS's upper inner thigh (count 1). She moved away to be out of his reach. The following day the appellant sent a message to CS in which he said, 'Sorry I was a bit weird yesterday and for going troppo'.[7]
[7] ts 723 - 724.
The prosecution case was that the appellant had also fostered a relationship with AS. This relationship included private messaging and also providing AS with cannabis and alcohol without her parents' knowledge.[8]
[8] ts 724.
On 1 December 2016, when AS was 18 years old, she was at the appellant's home with the appellant. He provided her with cannabis, which they smoked together. When they had finished smoking AS went to get her telephone which was charging in the kitchen. The prosecution case was that the appellant followed her, came up close behind her and, as she turned, pressed his groin against her. He ground his penis against AS and said words to the effect of 'Let's have some fun' (ground 3). AS felt scared and uncomfortable and told the appellant that she needed to speak with her boyfriend. He replied with words to the effect of 'Don't be a party pooper'. AS then left. The next day the appellant sent a private Facebook message to AS in which he said 'Hey, sorry about last night. I was a bit off my face'.[9]
[9] ts 724 - 725.
The remaining charges at the trial all related to MC. From around 2014 the appellant was in a relationship with a woman who will be referred to as JC. JC had two daughters from a previous relationship, OC and MC. JC and the two girls moved into the appellant's house. The appellant also had children from a previous marriage, but they would stay only every other weekend. In 2015 the appellant and JC had a child together, a son.[10]
[10] ts 725.
One evening in around September or October 2019 MC was at home with her family. She was 12 years old at this time. During the night she began vomiting and went to the master bedroom where the appellant and JC were sleeping. MC had a shower and then got into bed between the appellant and her mother and went to sleep. The prosecution case was that sometime later she was woken by the appellant holding her hand with his hand. He was putting her hand under her pyjama pants onto her vagina. He used MC's hand to rub her genitals in a circular motion (count 5). He then removed his hand from hers and started rubbing MC's stomach and breast area with his own hand.[11]
[11] ts 725.
The next morning MC told her sister OC what had occurred.[12]
[12] ts 725.
On a later date around September or October 2019, MC woke in the night from a nightmare. It was not unusual for MC to have nightmares and when she did, she would often go to the bedroom of the appellant and JC to sleep with them. On this occasion MC went to the bedroom, got into bed and went to sleep between the appellant and JC. The prosecution case was that sometime during the night she was woken by the appellant taking her hand and placing it on her vagina and rubbing her hand in a circular motion (count 6). MC moved her hand away. Sometime later the appellant again started rubbing MC's vagina with his own hand (count 7).[13]
[13] ts 725 - 726.
In the morning JC got up to have a shower. MC and the appellant were still in the bed together. The prosecution case was that MC was woken by the appellant placing her hand on his penis and moving it up and down (count 8). MC asked the appellant what he was doing and he said 'waking you up'.[14]
[14] ts 726.
On 21 December 2019, MC told her mother what the appellant had done. JC and the children left the appellant's home that night. On 24 December 2019 MC participated in a child witness interview.[15]
[15] ts 726.
In her opening address the prosecutor referred to the cross‑admissibility of the evidence as between counts and how the evidence could be used:[16]
But there are some ways in which the other counts can help you, the ways that these counts are, what we say, cross-admissible.
So the first is that if you find that the accused is guilty of one of the charges, you can use your finding of guilt in respect of that charge to determine that the accused has a sexual interest in pre-teen and teen girls who are known to him, upon which he is prepared to act when the opportunity arises. Now, you cannot use that as your starting position, you cannot go into this task saying, 'He has that sexual interest, so let's just go', can't do that.
You need to wait, consider all of the evidence, consider at least one of the charges, find the accused guilty on that charge, and then, if you're satisfied that he committed one of the charges, then you can use that charge to conclude that he did have this sexual interest. And this sexual interest will help you in finding a verdict on the remainder of the counts, because we say if he has that sexual interest, then he's more likely to have committed the other charges on the indictment.
So ladies and gentlemen, to be perfectly clear, if you get to the point where you're finding the accused guilty on one of the charges, at that point, you can accept that he has a sexual interest in pre-teen and teen girls who are known to him, upon which he is prepared to act when the opportunity arises. If you get there, no doubt knowing that interest, then that will help you with the remainder of the charges.
[16] ts 734.

The defence case

The defence case was that none of the alleged acts had occurred. It was accepted that CS and AS were the children of friends of the appellant whom he had known over many years. It was also accepted that he had engaged in Facebook communications with CS and AS, but it was suggested that when seen in context there was nothing sinister about those communications. The appellant had, over many years, become friendly with the two girls and they had been engaged as babysitters for his children. They often asked him to do favours, like giving them lifts. This had continued even after the alleged acts.[17]
[17] ts 740 – 741.
In respect of MC, the defence case was that she and her sister disliked the appellant. This dislike was said to be the motivation for the making of false claims regarding the appellant.[18]
[18] ts 742.

Grounds of appeal

There are two grounds of appeal. They are as follows:[19]
(1)The learned primary trial judge erred in law by ordering that count 3 should remain joined on the indictment when determining the appellant's application to sever count 3 from the indictment, pursuant to s 133(3)(a) of the Criminal Procedure Act 2004 (WA).
(2)The learned primary judge erred in law by ordering that the evidence in relation to count 3 on the indictment was cross‑admissible to all other counts on the indictment as propensity evidence, pursuant to s 31A of the Evidence Act 1906 (WA).
[19] Appellant’s case 6.
It is convenient to deal with ground 2 first. It was conceded by counsel for the appellant that if the evidence in relation to count 3 was cross‑admissible in relation to the other counts then ground 1 would fall away.[20]
[20] Appellant’s case, par 32.

Ground 2 - the propensity evidence ruling

At the directions hearing on 20 November 2020 the State sought a ruling that the evidence in relation to count 3 was admissible in respect of the other counts.
The appellant opposed the application. The appellant submitted that the conduct in respect of count 3 was not sufficiently similar to the other alleged conduct. In particular, the appellant submitted that the alleged grooming of AS by way of the Facebook messages was not reflected in the evidence regarding CS and MC. Whilst there were also Facebook messages with CS, the appellant contended that those messages did not have sexual connotations. The appellant also relied on the fact that the alleged sexual conduct in respect of AS occurred when she was aged 18 and suggested that it did not prove any propensity to behave in a sexual way towards a child. The appellant also asserted that the prejudicial effect of the evidence was so significant as to outweigh any probative value the evidence had.[21]
[21] ts 15 - 16.
In his ruling, Herron DCJ, acknowledged that there were some differences between the alleged offending relating to CS and AS and that relating to MC and OC[22]. In this regard his Honour said:[23]
So while the nature of his relationship with those two complainants is different to the nature of his relationship with [CS] and [AS] there are similarities. In each case he had a close relationship with a parent or parents of each of the complainants and it's through that relationship that he developed a friendship with each of the complainants.
When I say 'each of the complainants' I'm talking about the four complainants. His relationship with [MC and OC] was because he became their stepfather and a position of trust arose both at law and as a matter of fact over a period of time which allowed, on the State case, him to offend against each of them.
[22] Count 9 (of which the appellant was acquitted at the first trial) was still in play at that stage.
[23] ts 26.
A little later his Honour said:[24]
The evidence on the State case demonstrates that the accused was prepared to develop a friendship with young girls, who were friends - who were daughters of a friend of his over a long period of time. A friendship of - not a usual friendship you would expect a friend of their fathers' to develop with the young girls. It was, on the State case, a grooming relationship to develop the trust of the girls that demonstrated a course of conduct by the accused towards the girls.
In my view, it is evidence of him developing that relationship with them because he had a sexual interest in young girls and was prepared to develop a relationship of trust with them over time to provide him with the opportunity to offend against the girls in a sexual way if the opportunity presented itself when he was alone with each of the complainants, which is what is alleged to have happened. The opportunity to offend against them would not, on the State case, have arisen had he not developed that friendship with them over an extended period of time, and had they not come to trust him.
The evidence is significantly probative in that it shows a determination on the part of the accused to develop a relationship of friendship and trust with the girls over an extended period of time to create an opportunity to offend against them only because he had a sexual interest in them.
The evidence is also significantly probative that the accused had a tendency to act on that interest when the opportunity arose. An opportunity which only arose because of his relationship of trust with the girls, either because of a friendship developed over time through his friendship with the girls' father or because he was in a de facto relationship with the girls' mother.
In each case, in each of the cases, the four complainants, he was, to some extent, and certainly in relationship to [CS] and [AS], in a position of trust and certainly in a position of trust in relationship to the [MC and OC] sisters. And that is significantly probative of whether he had a sexual interest in relation to the other complainants and was prepared to act on it when the opportunity presented - when he created the opportunity to offend against them or an opportunity to act on that sexual interest.
[24] ts 27 - 28.
His Honour also considered the defence submission that the probative value of the evidence compared to the risk of an unfair trial was such that fair minded people would think that the public interest in adducing all relevant evidence of guilt could not have priority over the risk of an unfair trial. In that regard, his Honour noted that defence counsel relied principally on the fact that the appellant was alleged to have supplied AS with alcohol and cannabis from the age of 16 until the age of 18, when it is alleged count 3 occurred. Whilst he accepted that the evidence would create some prejudice, he was satisfied that that prejudice could be addressed by appropriate directions to the jury.[25]
[25] ts 28 - 29.

The evidence of AS

For the purposes of this appeal, it is only necessary to summarise the evidence of AS as that is the evidence that the appellant asserts was inadmissible at the trial.[26]
[26] AS's evidence was given at the first trial and a recording of that evidence was relied on at the second trial.
AS said that the appellant was a friend of her father and that she knew him from the time she was about 11 years old. She started to have communications with him by Facebook Messenger when she was about 14 years old. In these messages he would ask whether her parents were at home, would send her jokes or would ask her to do something for him. She recalls that the messaging was quite frequent, but she deleted many of the messages. She did this because she did not want her parents to see them. She said that in the messages she deleted there was 'a lot of inappropriate talk' and mention of drugs and alcohol.[27]
[27] ts 149 - 150.

AS said that there were occasions when the appellant gave her alcohol. She also used cannabis with the appellant. There was only one occasion when he gave her cannabis and it occurred at the appellant's home. On that occasion the appellant messaged her to come to his house. When she got there, there was no one else apart from the appellant at home. They smoked some cannabis at the back of the house and she then went into the house for her telephone, which she had left charging in the kitchen.[28]
[28] ts 150 - 152.
As AS was in the kitchen checking her telephone for messages the appellant came up towards her and pressed himself against her whilst she was in a corner. She could feel his penis and he was grinding up and down her leg. He said 'Let's have some fun'. AS 'felt really uncomfortable' and said that her boyfriend was calling her. When she told the appellant that her boyfriend wanted to speak to her and that she had to go, he said 'Duh, don't be a party pooper'. She took her telephone and left, returning to her house.[29]
[29] ts 152 - 153.
The appellant sent a message to AS the next day in which he said 'Hey, sorry about last night. I was a bit off my face'.[30]
[30] ts 153.
AS produced her telephone to the police. On analysis a number of messages from the appellant were located. Some of those messages had sexual connotations or referred to drinking alcohol. For example, on one occasion, the appellant referred to someone swimming 'like a shark with a boner'. On another occasion he referred to AS's mother as a 'yummy mummy'. On another occasion he referred to AS's 'hot momma'. On another occasion he referred to needing someone to 'wipe the sweat off my bald head'. On another occasion he asked AS whether she was at 'your boyfriends [sic] making love'. When AS replied to this message saying that she was not the appellant messaged 'Oh, no penis involved. LOL. Oops too much info'. In a series of messages on 11 September 2015, the appellant proposed having a 'tequila night'. When AS suggested that this be put off to the next day the appellant referred to her as a 'soft cock'. This prompted AS to say, 'Give me six shots then'. The appellant replied, 'I will bring it down if the folks go out'.[31]
[31] ts 154 - 160.
In cross‑examination it was suggested to AS that the appellant and her father shared a cheeky and childish sense of humour and that some of things said in the text messages reflected the things that they said to each other in her presence when drinking. AS said that she did not know but that she had never heard her father make sexual jokes around her.[32]
[32] ts 165 - 166.
It was put to AS that there was a family computer which she would sometimes use to send Facebook messages and that she may have sent messages to the appellant without making it clear who was communicating. AS said that she could not recall this.[33]
[33] ts 167.
It was put to AS that whilst the appellant may have walked up behind her whilst she was in the kitchen, he did not rub his groin into her. She rejected that suggestion and maintained that that had occurred.[34]
[34] ts 179.

Ground 2 - trial judge's directions

The trial judge directed the jury that they could not convict the appellant on any count on the indictment unless they were satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the relevant complainant's evidence in relation to the count they were considering. The trial judge gave lengthy and detailed directions regarding the onus and standard of proof, the elements of the offences and the use to which evidence could be put. No dispute is raised in regard to any of these directions. In respect of propensity, his Honour gave the following directions:[35]
[35] ts 1409 - 1411.
So a finding that [the appellant] is guilty on one or more of the charges may well establish a sexual interest or propensity or tendency that the State has submitted, but that is a matter for you. There are some directions I need to give you about this though. First, if you find [the appellant] not guilty of a charge, i.e. acquit him, you could not use the evidence you've heard about [the appellant's] conduct in that charge when you're considering any other charge.
If you found him not guilty, you must proceed on the basis that he's innocent of that charge. So evidence of that specific act on a charge where you've acquitted or found [the appellant] not guilty cannot be used by you when you're considering any other charge.
So for example, if you do not accept [MC's] evidence about [the appellant's] conduct on the subject of one charge, then that may influence your assessment of her credibility about the events the subject of the other charged offences involving [MC]. Remember, there's four separate charges involving [MC], and so therefore her evidence in relation to counts 3, 4, 5 or 6.
And to the corollary, if you do accept [MC's] evidence about [the appellant's] conduct the subject of charges 3, 4, 5 or 6, then that may influence your assessment of her credibility about the events of the other charged offences involving [MC]. If you are satisfied beyond reasonable doubt that [the appellant] is guilty of one or more charges, the evidence in relation to those charges may be relevant to the other charges.
You are permitted to consider the evidence of any charge or charges which you find [the appellant] guilty, along with the other evidence, to decide whether the State has proved another charge in the indictment beyond reasonable doubt. So it'd be open to you to conclude that the occurrence of an inference the subject of one or more of the charges increases the likelihood that [the appellant] had committed the specific act the subject of another charge.
However, it's only open to you to come to that conclusion if you're satisfied of the following. Firstly, the occurrence of the incident or incidents establishes that [the appellant] had a sexual interest in pre‑teenage and teenage girls who were known to him. And a tendency to act on this sexual interest by touching girls in an indecent way when circumstances or the occasion permitted. And that [the appellant] had this sexual interest and tendency at the time of the specific act which is the subject of the remaining charge or charges you are still considering.
Also, if you accept that [the appellant's] acts were indecent in any of the six charges when you're considering that element, you can use this finding when considering the indecency element in the remaining charges because the finding would indicate a sexual nature to the touching or dealing. But you also need to also consider the circumstances in which the act was committed if you find the act occurred.
And why I say that, to give you an example in counts 1 and 2, the [CS], [AS] counts, [the appellant] in his evidence raises the issue of an inadvertent or accidental possible touching of either of those two females. So the touching would need to be deliberate or willed and it also has to be indecent.
Now, I now need to give you some directions of law about how you cannot use the evidence of any charge or charges on which you find [the appellant] guilty. You cannot use the evidence about any charge where you are satisfied beyond reasonable doubt of [the appellant's] guilt in substitution for evidence of the events relating to any other charge.
In other words, proof to your satisfaction of guilt upon one charge must not lead you automatically to a guilty verdict on any other charge. You cannot say that because [the appellant] did one of the acts as charged therefore he must be guilty of what is alleged in any one or more of the other charges.

Ground 2 - appellant's submissions

The appellant accepts that the evidence of count 3 falls within the definition of propensity evidence in s 31A of the Evidence Act. However, it is submitted that the tendency to have a sexual interest in young females with whom the appellant has come into contact through friends or partners, with a view to developing a relationship of trust in order to give effect to that tendency when the opportunity arises, is not sufficiently specific or precise. The appellant submits that a propensity in these terms suffers from the defect of being at too high a level of generality in the sense that there is no attempt to specify the way in which the appellant is willing to give effect to the tendency when the opportunity arises. It is suggested that the only propensity which the evidence of count 3 was capable of proving was a tendency of the appellant to have a sexual interest in young teenage girls.[36]
[36] Appellant’s case, pars 47 - 51.
The appellant refers to differences between the circumstances in respect of count 3 relating to AS and those in respect of counts 5 to 7 relating to MC. In particular, that:[37]
(1)MC was 12 years of age at the time of the alleged offending, whereas AS was 18 years of age.
(2)MC was the de facto step‑daughter of the appellant, whereas AS was the daughter of a family friend.
(3)The nature of the offending against MC involved touching in a bed, whereas the offending against AS involved a fully clothed interaction in the kitchen.
(4)Whilst the Facebook messages with AS could demonstrate that the appellant had a sexual interest in young teenage girls, there was no evidence that that interest had been acted on whilst AS was a child.
(5)The offending in respect of AS was not contemporaneous with, or even temporally proximate to, the incidents involving MC.
[37] Appellant’s case, par 59.
Having regard to those differences, it was submitted that the evidence in respect of count 3 was not significantly probative in regard to the issue of whether the touching of MC had occurred as alleged.[38]
[38] Appellant’s case, par 60.
In oral submissions counsel for the appellant said that there were two factors that deprived the evidence of significant probative value. They were, first, that the nature of the offending in respect of AS was different from that in respect of MC. Secondly, that AS was an adult at the time of count 3 whereas MC was a child of 12. The appellant submitted that any probative value deriving from the events of count 3 must arise, not merely from a sexual interest, but a willingness to act upon it. Since the action in respect of count 3 occurred when AS was an adult, that is, when she was 18, it was materially different from the sexual interest said to be a factor relevant to the commission of counts 5 to 7. Counsel submitted that insofar as the trial judge referred to teenage and pre‑teenage girls the category was too broad to prove a relevant tendency.[39]
[39] Appeal ts 28 - 29.

Ground 2 - relevant legal principles

Section 31A of the Evidence Act provides as follows:
(1)In this section -
propensity evidence means -
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
In RMD v The State of Western Australia,[40] the following principles were summarised as being relevant to whether propensity evidence has significant probative value:[41]
[40] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67.
[41] RMD v The State of Western Australia [185] (Beech J, Mazza JA agreeing).
The principles relevant to s 31A were recently outlined in DKA v The State of Western Australia by reference to a number of appellate decisions. In summary:
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(2In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
(3)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue.
(4)The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.
(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.
(6)If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
(8)The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value. (footnotes omitted)
In the State of Western Australia v Jackson,[42] the following further points were made:
First, the term 'propensity evidence', as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence … of a tendency that the accused person has or had'. The word 'conduct', in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.
Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a) the evidence is capable of proving the propensity; and
(b) proof of the propensity increases the likelihood of the commission of the offences.
Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'. For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.
Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value. (footnotes omitted)
[42] The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [20] - [23].
In Jackson this court stressed that the question of whether evidence has significant probative value must start with identification of the fact in issue to which the evidence is said to be relevant:[43]
The inquiry as to whether propensity evidence has significant probative value begins with the identification of the fact(s) in issue to which the propensity evidence is said to be relevant. Whether propensity evidence has significant probative value will depend upon the nature of the fact in issue to which it is said to be relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact. If propensity evidence is said to be relevant to more than one fact in issue, the evaluation of the probative value of that evidence must be conducted separately in relation to each fact in issue to which the propensity evidence is said to be relevant.
[43] The State of Western Australia v Jackson [52].

Ground 2 - the merits

It is important to pay close attention to the way in which the propensity evidence was used at the trial and the directions in that regard that were given to the jury by the trial judge. Those directions form the framework within which the jury were permitted to use the evidence as propensity evidence. The determination of whether the trial miscarried in consequence of the admission of the evidence is concerned with the use made of the evidence at the trial.
Significantly, the jury were directed that they could only use the evidence as propensity evidence once they had made a finding of guilt on at least one charge. It was only when at least one charge had been proven beyond reasonable doubt that the jury could use the evidence in respect of that charge in considering whether other charges had been proved.[44]
[44] ts 1409 - 1410.
The trial judge also directed the jury that they could only use the evidence relating to one count in considering whether another count was proven if they were satisfied that:[45]
(1)The occurrence of the incident established that the appellant had a sexual interest in pre‑teenage and teenage girls who were known to him.
(2)The incident also established a tendency to act on this sexual interest by touching girls in an indecent way when circumstances or the occasion permitted.
(3)The appellant had this sexual interest and tendency at the time of the specific act which is the subject of the remaining charge or charges that the jury were still considering.
[45] ts 1410 - 1411.
The evidence in respect of count 3 had two relevant aspects. First, the Facebook messages that had been exchanged with AS from the time she was aged 14, some of which had sexual connotations. Second, the sexual assault in the kitchen of the appellant's home when AS was aged 18. The prosecution case was that these two aspects were related and that, together, they established that the appellant had a sexual interest in pre-teen and teenage girls, with whom he had developed a relationship over a long period and that he was prepared to act upon that interest if the opportunity presented itself.
It was not disputed, either in the court below or on the appeal, that the evidence fell within the definition of propensity evidence in s 31A, in that it was capable of establishing a tendency on the part of the appellant. The real issue is whether that evidence had significant probative value.

The appellant emphasises that at the time of count 3 AS was not a child and, thus, the evidence does not establish a tendency to touch children (as opposed to only having a sexual interest in them). In essence, the appellant's argument is that, for the evidence in respect of count 3 to have significant value as propensity evidence both the sexual interest and the willingness to act on it should have occurred whilst AS was a child. Because the appellant did not act on his sexual interest until AS was 18, the evidence is said not to have significant probative value.[46]
[46] Appellant’s case, pars 50 - 51; appeal ts 28.
It is necessary to start the consideration of whether the evidence had significant probative value by identifying the fact in issue to which that evidence relates. The relevant fact in issue was whether the indecent acts the subject of the other counts on the indictment had occurred. It was not contended that any of the touching had occurred inadvertently or that, if it occurred, it was not indecent. The evidence would, relevantly, have significant probative value if it would rationally affect, to a significant extent, the assessment of the probability of whether the appellant had touched MC as alleged.
The nature and extent of any similarity between the evidence and the other alleged conduct is relevant in assessing whether the evidence has significant probative value. This requires a consideration of the whole of the evidence. Individual features when looked at separately may be different, but when the conduct is looked at as a whole it may be substantially similar to the alleged offence. The significance of individual features may also depend on the nature of the alleged propensity. In this case, importantly, the propensity was not defined as relating to children, but to pre-teenage and teenage girls.
The evidence in respect of count 3, when taken at its highest, was capable of establishing that the appellant had displayed a sexual interest in AS from the time she was aged about 14 years old. On her evidence the appellant had been privately messaging her in an inappropriately sexual way from about that age. Although not all the messages had been stored, those that were available confirmed the evidence of AS in this respect. Thus, in considering the conduct in relation to AS as compared to that in relation to MC, the ages of the victims at the time of the conduct needs to be seen in the broader context of the sexual interest that the appellant had shown in AS from a time when she was much younger than she was when the sexual assault occurred.
The fact that AS was legally an adult in December 2016 does not detract from the relevant tendency. She was, on any view, a very young adult. It is artificial to draw a line at a particular age and say that anything occurring above that age is irrelevant in assessing whether the evidence has significant probative value. If that approach was applied to the facts of this case it would lead to the absurd conclusion that acts that occurred after AS reached the age of 18 were irrelevant, but those occurring months or days earlier would be relevant. When dealing with behavioural traits or sexual characteristics it is unrealistic to expect that they will neatly reflect demarcations regarding calendar age that are contained in written laws. The tendency of a person to have a sexual interest in girls known to them and to touch those girls in an indecent manner when the opportunity arises could not possibly diminish in probative value merely because a victim has turned 18. The appellant's argument relies on the false assumption that the propensity evidence had to prove a tendency to sexually touch children under 18. That was not the nature of the propensity that the evidence was adduced to prove.
The real question is whether the propensity actually relied on had significant probative value. The propensity was defined in relation to the age group of the females in whom the appellant had a sexual interest, namely pre‑teen or teenage girls who were either going through puberty or had already entered puberty. There was no suggestion that the appellant had a sexual interest in pre‑pubescent or undeveloped girls. The suggestion that the category of pre‑teenage and teenage girls was too broad to have probative value also needs to be seen in the context that the propensity alleged was not in respect of all females falling into this category but girls who were known to the appellant and with whom he formed a relationship, either because they were the daughters of friends or because he was in a parental relationship with them. This defined the relevant tendency more closely. Furthermore, the tendency was to act opportunistically. When these factors are taken together the propensity could not be said to be at a high level of generality.
The differences between offending relating to AS and that relating to MC referred to by the appellant (see [43] above) are not such as to diminish the probative value of the evidence to any material extent. The age difference between AS and MC has to be seen in the context that they both fall within the category of pre-teen and teenage girls and that there was evidence that the appellant had shown a sexual interest in AS from a younger age. That AS was the daughter of friends, whereas MC was the appellant's de facto stepdaughter is not a material point of difference. Both relationships were developed over time and involved elements of trust. The nature of the offences were not materially different: both involved indecent touching. The offences were only different to the extent that the circumstances were different. In any event, it is unlikely that a sexual interest will be confined to being only expressed in one form of action. The fact that the appellant did not act on his sexual interest in AS when she was a child has already been dealt with. The offence in respect of AS occurred approximately three years before the offences in respect of MC, but that is not a particularly lengthy period, nor one that would make it unlikely that an established propensity still existed.
Nor is there any real significance in the fact that the Facebook messaging that occurred with AS was not a feature of the appellant's relationship with MC. The nature of the messaging in the case of AS was that it was a secret form of communication that established a relationship of trust and confidence between them. There was no need for the appellant to do something similar in respect of MC, as he had a relationship of trust with her by reason of his de-facto relationship with her mother. This is evidenced by the fact that she felt comfortable getting into bed with her mother and the appellant.
The propensity evidence plainly had significant probative value. It established not merely a tendency to have a sexual interest in pre-teen and teenage girls who were known to the appellant, but a tendency to act upon that interest when the opportunity to do so arose. The evidence relating to count 3 would rationally affect, to a significant extent, the assessment of the probability of whether the appellant had indecently touched MC.
The appellant suggested that the present case bore similarities to the cases of Jackson and MNA v The State of Western Australia.[47] In Jackson the accused was charged with indecently dealing with two 12‑year-old girls who he did not know by touching them as he passed them in a supermarket aisle. He was also charged with possessing child pornography, comprising pictures of pre-pubescent girls posing in bathers or underwear. The State appealed against an order for separate trials of the indecent dealing and child pornography charges. The court considered whether the evidence relating to the child pornography charges was admissible as propensity evidence in relation to the other charges. The court held that the child pornography evidence did not have significant probative value for the purpose of proving that the touching alleged in the other charges occurred, but it did have significant probative value for the purposes of proving that any independently established touching was deliberate and sexually motivated.
[47] MNA v The State of Western Australia [2020] WASCA 84.
The circumstances of Jackson were clearly different from those of the present case. In the present case both count 3 and the counts relating to MC involved alleged sexual touching and the fact in issue in respect of all counts was whether that touching had occurred at all. This was not a case where the evidence was only admissible for a limited purpose once the touching was independently proved. The directions of the trial judge clearly identified the use that could be made of the evidence. Jackson does not assist the appellant.
In MNA the offender was charged with indecently dealing with two sisters, both under the age of 13, by touching one sister on the vagina and the other on her breast, on separate occasions. The defence case raised the issue of whether the touching may have been innocent or accidental, or misinterpreted by the complainants. The prosecution relied on a previous conviction as propensity evidence. That conviction concerned the accused's use of social media sites with the intent of procuring a person he believed to be a 13‑year‑old girl to engage in sexual activity. Buss P and Mitchell JA held that the prior conviction had significant probative value to the issue of whether any touching that occurred was deliberate and sexually motivated (in the same manner as in Jackson).[48] The fact that the offender had displayed a sexual interest in 13‑year‑old girls made it more likely, to a significant extent, that the contact with the complainants was deliberate and sexually motivated. However, the appeal was allowed because the directions to the jury as to how they could use the evidence were inadequate.
[48] MNA [70].
The circumstances of MNA were also different from those of the present case. The fact in issue in MNA to which the evidence related was not whether the acts occurred but whether, if the touching was otherwise proved, it was deliberate and sexually motivated. Unlike the present case, the evidence in MNA was admissible only for a limited purpose. In both Jackson and MNA the propensity evidence only had limited use largely because it only proved a sexual interest and did not involve any physical act of touching. MNA does not assist the appellant.
It was not suggested on the appeal that the second test in s 31A ‑ 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 ‑ would not be met in the event that it was concluded that the evidence had significant probative value. In any event, the directions by the trial judge were clear and obviated any risk that the evidence would be misused or that the trial would be unfair.
The evidence in respect of count 3 was admissible as propensity evidence. There was no error in ruling that the evidence could be used in that way. This ground has no reasonable prospect of succeeding and leave in respect of it should be refused.

Ground 1 - the merits

Given that ground 2 cannot succeed and the evidence of count 3 was properly admissible as propensity evidence in respect of the other counts, ground 1 must fail. There is no merit in the claim that a separate trial in respect of count 3 should have been ordered. Ground 1 has no reasonable prospect of succeeding and leave in respect of it should be refused.

Conclusion

Leave in respect of each of the grounds should be refused and the appeal dismissed.

Orders

Leave to appeal refused.
Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
27 JUNE 2023