Marrell v The State of Western Australia - [2023] WASCA 139

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MARRELL -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 139
CORAM:   BUSS P
BEECH JA
HALL JA

HEARD:   25 AUGUST 2023
DELIVERED          :   29 SEPTEMBER 2023
FILE NO/S:   CACR 5 of 2023
BETWEEN:   JACOB PAUL MARRELL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   HERRON DCJ
File Number            :   IND 1402 of 2021

Catchwords:

Criminal law - Appeal against conviction - Sex offences - Whether evidence adduced in cross‑examination for a different purpose was capable of being used as propensity evidence - Whether trial judge failed to give appropriate directions as to use of evidence - Whether admissible and prejudicial evidence regarding drug use and other matters caused miscarriage of justice - Whether any prejudice was adequately guarded against by directions

Legislation:

Criminal Code (WA), s 323, s 325
Evidence Act 1906 (WA), s 31A

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	J Jackson
Respondent	:	B Murray

Solicitors:

Appellant	:	James Jackson Criminal Defence
Respondent	:	Director of Public Prosecutions (WA)

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

De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57
Hamilton v The Queen [2021] HCA 33; (2021) 394 ALR 194
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
HTN v The State of Western Australia [No 2] [2022] WASCA 51
KHA v The State of Western Australia [2022] WASCA 173

JUDGMENT OF THE COURT:

The appellant was convicted after trial of two counts of indecent assault, contrary to s 323 of the Criminal Code (WA), and two counts of sexual penetration without consent, contrary to s 325 of the Criminal Code. One of the counts of sexual penetration was committed in circumstances of aggravation. The offences related to the same complainant and were part of a series of events that occurred on 22 December 2019. On 14 December 2022 the appellant was sentenced to a total effective sentence of 6 years 3 months' immediate imprisonment, backdated to 14 November 2022.
The appellant seeks leave to appeal against his conviction on four grounds. The first ground alleges that the appellant suffered a miscarriage of justice due to the admission of inadmissible propensity evidence at his trial. The second ground, which is in the alternative to ground 1, alleges that the appellant suffered a miscarriage of justice due to the failure of the trial judge to give a direction to the jury as to the use that could be made of the propensity evidence. The third ground alleges that the appellant suffered a miscarriage of justice due to the admission of inadmissible and prejudicial evidence contained in his police interview. The fourth ground alleges that the appellant suffered a miscarriage of justice due to the admission of inadmissible and prejudicial evidence regarding the supply of drugs by the appellant.
The evidence identified by the appellant as propensity evidence was not of that character. The evidence was not, as alleged by the appellant, either similar fact evidence or evidence of a relevant tendency on the part of the appellant. The evidence was adduced in cross‑examination of a prosecution witness by defence counsel and was not led as propensity evidence, nor was there any suggestion that it could be used in that way. There was no perceptible risk that the jury would misuse the evidence to engage in propensity reasoning and, thus, no directions by the trial judge to obviate such a risk were required.
The evidence that is the subject of grounds 3 and 4 was led without objection, and any possible prejudice arising from it was adequately dealt with by directions to the jury given by the trial judge. No miscarriage of justice arose from the admission of the evidence.
For those reasons, which are explained in more detail below, none of the grounds has a reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.

Prosecution case

On the evening of Saturday, 21 December 2019 the complainant was at the home of her friend, AC, in Seville Grove. AC communicated with the appellant using the dating application Plenty of Fish. AC had a PlayStation which she wished to sell, and the appellant expressed interest in buying it. AC invited the appellant to her house.[1]
[1] ts 40, 124.
The appellant arrived at AC's house by motorbike between 3.00 am and 4.00 am on the morning of Sunday, 22 December 2019. He had a small quantity of MDMA with him. He consumed some of the MDMA and supplied some to the complainant and AC, which they also consumed.[2]
[2] ts 40, 124 - 125.
The complainant and AC both had children who were sleeping at the house. There was a discussion with the appellant about the need to buy food for the children for breakfast. The appellant offered to take one of the women on his motorbike to a nearby 24‑hour supermarket. The complainant agreed to go with him.[3]
[3] ts 40 - 41.
On the drive to the supermarket, the complainant was seated behind the appellant. During the drive, the appellant took the complainant's hand and placed it on his penis, over his clothing. This conduct was alleged to be the first indecent assault, count 1 on the indictment.[4]
[4] ts 41.
At the supermarket, some food items were purchased. The appellant then told the complainant that he could obtain some cannabis at a friend's house that was around the corner. The complainant agreed to go with him to get the cannabis.[5]
[5] ts 56 - 57.
The appellant drove the complainant to a house in Armadale that was about 1 ‑ 2 minutes' drive from the supermarket. The house they went to was the residence of the appellant's sister and, at that time, the appellant was living there. On arrival, the appellant and the complainant walked through the house to the appellant's room, which was a separate granny flat at the back of the property. There was no further discussion about cannabis after they entered the room.[6]
[6] ts 57 - 58.
Once inside the room, the appellant closed the door and offered the complainant a drink. The appellant propositioned the complainant for sex, which she refused, stating that she was having her period. The appellant then forced the complainant to suck his penis. The complainant's mobile telephone rang whilst this was occurring, and the appellant permitted her to answer it. After the complainant ended the telephone call, the appellant took her mobile telephone and threw it out of her reach. He then again forced her to perform oral sex. The appellant ejaculated in the complainant's mouth, and she spat the ejaculate into a bin. The two acts of fellatio were the subject of counts 2 and 4 of the indictment.[7]
[7] ts 41 - 42.
Count 3 was a further allegation of sexual penetration by the appellant introducing his penis into the complainant's mouth. As the complainant gave evidence of only two incidents of penetration, the trial judge entered a verdict of acquittal in respect of this count.
The appellant drove the complainant back to AC's home on his motorbike. During this trip, he again took the complainant's hand and placed it on his penis. This conduct was alleged to be the second indecent assault, count 5 on the indictment.[8]
[8] ts 42.
The appellant dropped the complainant back at AC's house and then left. The complainant initially refused to tell AC what was wrong, but later that day she made a complaint to AC about what she said the appellant had done to her.[9]
[9] ts 42, 65 - 66.

Defence case

Defence counsel did not make an opening address and there were no formal admissions. In an interview with police the appellant had denied having any contact with the complainant or AC. That interview will be referred to in more detail later in these reasons. At least at the start of the trial, therefore, all elements of the alleged offences, including identity, were in issue. The appellant did not give evidence.
At the conclusion of the trial, it became apparent that the defence case was that, whilst the appellant did not dispute that he had gone to AC's home that night and had driven the complainant on his motorbike to his sister's house, he denied that any of the alleged sexual acts had occurred. A concession that identity was not in issue was not made until the end of the trial. This will be relevant when considering whether evidence was properly admitted.

Grounds of appeal

The grounds of appeal are as follows:
1.The appellant suffered a miscarriage of justice due to the admission of inadmissible propensity evidence at his trial.
Particulars
a.The appellant's counsel unintentionally adduced propensity evidence from the witness Rebekah Marrell in cross‑examination;
b.The evidence was relied upon by the State as part of its case;
c.The learned trial Judge did not make any ruling about the admissibility of the evidence, or give any direction concerning its use;
d.The propensity evidence was inadmissible; &
e.The admission of inadmissible propensity evidence caused the appellant to suffer material prejudice.
2.In the alternative to ground 1, the appellant suffered a miscarriage of justice due to the failure of the learned trial Judge to give any direction to the jury as to the limited use that could be made of the propensity evidence which was admitted at the appellant's trial.
3.The appellant suffered a miscarriage of justice due to the admission of inadmissible and prejudicial evidence contained in his police interview.
Particulars
a.The appellant admitted on several occasions that his sister had obtained a violence restraining order against him;
b.The appellant was dressed in prison greens and admitted on several occasions that he was presently in custody;
c.The appellant admitted he was facing another charge unrelated to the present allegation;
d.The interview containing these admissions was played to the jury;
e.The evidence was inadmissible; &
f.The admission of the evidence caused the appellant to suffer material prejudice.
4.The appellant suffered a miscarriage of justice due to the admission of inadmissible and prejudicial evidence given by the complainant and a prosecution witness.
Particulars
a.The prosecutor adduced evidence from the complainant and witness [AC] that the appellant had supplied them with MDMA when the appellant first met them;
b.The evidence had minimal relevance and was merely background information to the connection between the accused and the complainant;
c.The evidence was inadmissible as the prejudicial effect of the evidence outweighed its probative value; &
d.The admission of the evidence caused the appellant to suffer material prejudice.
It is convenient to deal with grounds 1 and 2 together.

Grounds 1 and 2 - relevant evidence

Rebekah Marrell

Rebekah Marrell is the sister of the appellant. In evidence‑in‑chief, she said that the appellant had lived with her at a house in Armadale in December 2019. She said he occupied a granny flat, which was a room off the house at the back.[10]
[10] ts 112 - 113.
Ms Marrell said that the appellant owned a maroon Sportster Harley Davidson motorbike and that she had seen him riding that motorbike during the time that he lived with her.[11]
[11] ts 113.
Ms Marrell confirmed that in mid‑2020 the police had come to her home and taken some photographs with her permission.[12]
[12] ts 113.
Ms Marrell said that the appellant was known to her as Jake, but that he also used the nickname 'Boobs'. The relevance of that nickname was that the person with whom AC communicated on the Plenty of Fish application had used the pseudonym 'Jake Boobs'.[13]
[13] ts 114.
The prosecutor did not adduce any evidence regarding Ms Marrell's knowledge of any women that the appellant brought to her house. That issue was raised, for the first time, in cross‑examination. The full content of that cross‑examination (and the brief re‑examination) is as follows:[14]
[14] ts 114 - 118.
DEFENCE COUNSEL: Ms Marrell, once - when your brother was living with you, did he get any lady visitors?---Very rarely. He had a - a girlfriend at the time called Stacey.
Now, do you recall any visitors in December 2019?---Not by name, no.
But do you recall - - -?---Yes.
- - - if he brought in a lady visitor?---Yes.
And do you recall at about what time he brought a visitor?---It was early in the morning, cos it - - -
What - what date, what - - -?---It was Saturday, cos his kids are asleep, so it was about 7, 7.30, I think.
7 or 7.30. And what were you doing there on that time?---Pottering around in my house, doing - I think I was in my bedroom, just cleaning out my wardrobe.
Who - who else was in - in your house, at the time?---My - I think the kids were both asleep in their bedrooms.
So how old are your children?---17 now and 12.
17 and 12, at that time, that would be two years less, right?---Yes, that's right.
15 and 10 - - -?---Yes, right.
- - - approximately. Now - - -
PROSECUTOR: I think three years, not two years.
DEFENCE COUNSEL: Three years, sorry.
It's three years less. Now, did - they were not awake at - at that - - -?---No.
That early in the morning?---No.
When do they awake, get up, usually?---Well, cos it's Saturday, we like - I would normally get them to sleep in on Saturday, but I was late, so I was trying to get them asleep.
Are you sure it was Saturday, not Sunday?---Yeah, no, it was definitely Saturday because sleep-in day's Saturday at my house - - -
What about Sunday? Is - Sunday is also sleep-in - house, isn't it?--- - - - for the kids I mean, and also for the boys, yes.
Yes, okay. So I'm asking you what happened, actually, when your brother brought - - -?---I heard his motorbike come back.
So it was early in the morning, right? Yes. Yes, that's why I was a bit like pissed or upset, that it was a bit louder than normal in the morning, cos it's so - - -
So you were afraid that he may woke up your children, right?---Yes.
And now, so you heard a noise, you heard a motorbike noise. So do you recall as to what was happening that morning, was he alone, do you know if - - -?---No, he had a female friend in his room.
Now, you didn't see that female friend at that, early in the morning - - -?‑‑‑No.
- - - when you were listening? Right, okay. Now, so did your brother come into your house that morning?---Yes.
So do you recall the time that passed when you heard a motorbike until your brother came into your house?---About 15, 20 minutes, I think.
Fifteen or 20 minutes. Okay. Now, and what did he ask? He asked for some marijuana, didn't he?---Yes.
And what did you say to him?---I said I'd go and have a look cos I wasn't sure how much I had left.
And what did he do then?---He ran back out to his bedroom.
Pardon? Sorry?---He went back out to his room and waited.
When you say 'room', what do you mean by 'room'?---The granny flat.
He went to granny flat?---Yes.
All right. Okay. So how long did it take before he came in and asked you for marijuana to go into the granny flat?---Till I went back to the granny flat, sorry.
Till he - till he - till he went there. How - how much time did he spend with you - - -?---Just a couple of minutes.
Just couple of minutes?---Yes.
Okay. So what - you - you then went to look for - - -?---Yes.
- - - marijuana. Do you use marijuana yourself?---Yes.
Did you have any marijuana in your house?---No, not at the time.
So what - what - you - you then - did he come back to ask for - for marijuana or you went over there?---No, I went to - to tell him I didn't have enough left. I thought I had enough for him but - - -
Okay. Can you tell me what you've seen when you went to there to tell him there is no marijuana, you don't have any?---Well, I didn't go into the room because the lights were on so I just said through the door that I didn't have enough left.
Let me - let me pause you there. There were two doors. There was a flyscreen - - -?---Yes.
- - -yes?---Yeah.
And there was a wooden door?---Yeah.
And was wooden door open?---Open.
And flyscreen was not open?---Not open.
And what did you see inside?---There was a girl sitting on the couch next to the table, sort of a bit hard - you can't really see inside unless the lights are on so I just sort of looked in and quickly saw a girl there and left it like that cos I didn't want to get - - -
Okay. So what - - -?--- - - - involved with his personal life.
What - what did you say to your brother?---I said - - -
- - - the accused?---I didn't have enough left for him so can't help you.
So what did he say to you?---'No worries. I'll have to go get some elsewhere'. And I said, 'Okay. Cool'. And he then said that, 'I've got a friend in here. I'm just going to go get some toys or something for her from' - - -
Well, get toys from where?---From the shed.
Which shed?---The first shed which is straight - it's the garden shed.
But that's a part of the granny flat - - -?---No.
- - - granny flat. No, okay. So what - what - what - what - what did you say to that?---I said, 'No worries', and they were already bagged up ready to go to the St Vincent or the Salvos, wherever they were going.
So you went back - back to the house, right?---I went back inside, yes.
And you then heard a motorbike - shortly after you heard motorbike leaving?---He said he was going to go off and try and get some marijuana.
Okay.
I have no further questions, your Honour.
HERRON DCJ: Re‑examination, [prosecutor]?
PROSECUTOR: So Ms Marrell, that incident you've just described where your brother came to the house to ask for marijuana, you recall that as being a Saturday. Is that correct?---Yes.
Okay. And just going back a number of years now, do you recall what particular date that was?---Think it was the 21st.
Of what month? December?---December.
Thank you.
Thank you. I have no further questions, your Honour.

Grounds 1 and 2 - the prosecution closing address

In closing, the prosecutor referred to the evidence given by Ms Marrell in the following terms:[15]
[15] Prosecution's closing address, ts 7 - 8.
You've also heard the evidence of Ms Rebekah Marrell, the accused man's sister. She confirmed the accused man was living with her in December of 2019. She confirmed his names of Jake, and the nickname 'Boobs' that both of them found on the Plenty of Fish profile. She confirmed he lived in the outside room, not the shed. That he had the Harley‑Davidson motorbike, and that he would ride it.
Not only are all of those things completely consistent with the complainant's account but, in a number of places, they're inconsistent with things that he said in his interview. I'm going to come back to that very shortly.
The aspect of Ms Marrell's evidence that I want to speak most about is the things that she was asked in cross examination about the Saturday when the accused man came up to the house to ask for some marijuana for a female visitor. Now, I anticipate those questions were asked, because it's intended to be suggested to you, well, that was [the complainant's] visit. And in fact, what happened with [the complainant] was that there was an attempt to get her marijuana, and there wasn't actually a forced sexual penetration.
But that incident that Ms Marrell described was clearly not [the complainant's] visit. Now, we know that [the complainant] went to that house on the Sunday; Sunday, 22 December. We know that not just from her evidence and [AC's] evidence, but from the messages that clearly refer to the incident with the accused being ongoing at the time of the messages, and they were sent on the Sunday, not the Saturday.
And yes, Ms Marrell's evidence couldn't have been clearer. The visit she was talking about was one that happened on a Saturday. She couldn't have been clearer on that, despite the attempts by the defence to try and suggest, 'It could have been Sunday'. And I'm not being critical in any way of the defence. It's entirely appropriate that he seek to test the evidence. But she was asked by [defence counsel] and this is at page 115 of the transcript:
Are you sure it was Saturday, not Sunday?---Yeah. No, it was definitely Saturday. Because sleep in day is Saturday at my house, for the kids, I mean.
And [defence counsel] spoke over the top of that answer to ask whether Sunday was also a sleep‑in day, but she never accepted that. And her answer was, 'Definitely Saturday, because that was the sleep‑in day for the kids'.
When I asked her further questions after [defence counsel]'s questions, she said she remembered the date of this visit as being 21 December, which was a Saturday. You might think, she's clearly got an amazing memory for dates, given that she remembers that date after the passage of a long time. And her evidence was crystal clear that it was Saturday. And, if you accept it was 21 December, it was the Saturday one day before this incident with [the complainant]. It must have been another visit with another woman. It was not [the complainant's] visit. It couldn't have been.
And when you think about it, doesn't it just make complete sense that, when the accused man was with [the complainant] on the Sunday, and when he was clearly wanting a pretext to get her to come to his place, in order to get her alone, the pretext that he came up with was exactly the same thing that had happened the previous day with this other unknown woman; namely, 'Come to my place, I can get you marijuana'.
He'd taken this other woman to the place the previous day to actually try and get marijuana for her. Doesn't it just make complete sense that the very next day, he'd use that same scenario as a pretext to convince [the complainant] to come to his place, not least because he knew she was wanting marijuana?
So Ms Marrell's evidence doesn't undermine the prosecution case one bit. In my submission, it strongly supports it. (emphasis added)

Grounds 1 and 2 - defence closing address

In his closing address, defence counsel, as anticipated by the prosecutor, sought to rely on the evidence of Ms Marrell on the basis that she was mistaken regarding the date and that the woman she saw with the appellant was the complainant. The relevance of this from the defence perspective was that if the appellant had made an effort to obtain cannabis from his sister, it would tend to refute any suggestion that he had lured the complainant to his house on a false pretext. Furthermore, the evidence of the complainant was that she and the appellant had gone directly to his room and remained there until they left. The evidence of Ms Marrell that the appellant had come to her room and asked for some cannabis could be viewed as being inconsistent with the complainant's evidence.
Having referred to a possible inconsistency between the complainant and Ms Marrell regarding whether a flyscreen door to the granny flat was closed, counsel said:[16]
She said as she saw it, 'Yes,' she missed out on that date and she was certain it was a Saturday morning but as my learned friend said, it's three years after, you're asking somebody that saw something briefly and to ask her now about the dates, exactly, I'm not quite sure that is that significant, whether it's a Saturday or it was Sunday.
It was summertime, kids were not at school. They were sleeping, that's what she knows. Now, what she said then and I'm talking now this - about Ms Marrell, that the accused went at some stage, that she heard a motorbike around 7, just after 7 o'clock, later - 7 o'clock, but shortly after some 10, 15 minutes maybe, I think, that my - that the accused walked in to ask her if she would have some marijuana.
She said that she will look if she had one and a minute or two later, she went back, the flyscreen was closed, the wooden door was open. She saw a female from the side and she said to him that she couldn't get any.
[16] Defence closing address, ts 14.
Counsel summarised the evidence given by the complainant as to what had occurred, and then referred to Ms Marrell's evidence again:[17]
Now, [the] other thing is the sister now, we go back to his sister which went to (indistinct) marijuana, she then said that she can't source any marijuana for them and of course, the victim denies seeing the sister or anybody else for that matter.
[17] Defence closing address, ts 17.
Although defence counsel's address was not a model of clarity, it is tolerably clear that what he was suggesting to the jury was that the woman Ms Marrell saw with the appellant was the complainant, and that her evidence was inconsistent in material respects with that of the complainant. The suggestion was that this was a relevant consideration in assessing the credibility of the complainant.

Grounds 1 and 2 - the trial judge' summing-up

At the commencement of the summing up, the trial judge identified the main issue as being whether the jury was satisfied beyond reasonable doubt that the events described by the complainant happened. The issue for the jury was whether they were satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the evidence given by the complainant. His Honour told the jury that the prosecution case depended upon the acceptance of the evidence of the complainant and that the jury would need to carefully scrutinise her evidence.[18]
[18] ts 193 - 195.
The trial judge summarised the prosecution case and explained the elements of each of the offences. The trial judge said that one of the elements of the offences was identity. He said that whilst there was no real issue in respect of identity, it remained necessary for the jury to be satisfied beyond reasonable doubt of that element. In this context, his Honour referred to the evidence of Ms Marrell regarding the appellant living at her house and owning a motorcycle. He also referred to Ms Marrell's evidence regarding the appellant's name and nickname.[19]
[19] ts 199 - 201.
The trial judge then referred to the evidence that Ms Marrell gave in cross-examination:[20]
The accused's sister, Rebekah Marrell, gave evidence that when the accused, who was then living at the granny flat at the back of the house, arrived home in the morning of 21 December, a Saturday, he asked her for marijuana, but she didn't have any.
The fact that the accused was in possession of or used illicit drugs is irrelevant in this case. On the State case, it provides some background to the connection between the complainant … and the accused on the morning of 22 December, and why they ended up at the Prout Road property and the granny flat in which the accused was then living.
Your task is to decide this case on the evidence. To do so means that you should assess the evidence fairly and objectively. You should not allow yourself to be prejudiced against the accused because he may have brought MDMA to [AC's] house and shared it with [the complainant] and [AC], or that he offered to source cannabis for [the complainant].
[20] ts 212 - 213.
Towards the end of the summing up, the trial judge, in summarising the defence case, noted the following:[21]
The defence refers to the evidence of the accused's sister, Ms Marrell, which she said occurred on the Saturday, 21 December, when the accused came to her door and asked her for marijuana.
And then the sister, Rebekah, wasn't able to source marijuana and came back to the granny flat and was able to see through the flywire door, she didn't enter the granny flat, but told the accused she didn't have any marijuana, and she saw a female in the room.
The defence says that that is the occasion on which the complainant … was at the house. And then referring to the evidence of the sister, Rebekah, that she heard a motorbike arrive that day at about 7 am, which the defence says is consistent with the evidence of [the complainant] that that's about the time they arrived at the Prout Street property.
The State of course says the incidents are two different incidents. There was a separate occasion on which the accused came to the house on the Saturday with somebody else who was not the complainant. The complainant's evidence was that it occurred on the Sunday, the 22nd, which is also the defence submits, the evidence of Ms Marrell.
[21] ts 217.
Defence counsel did not raise any issue with the directions given by the trial judge and did not seek any redirections. Specifically, there was no suggestion that any direction was required in respect of the evidence of Ms Marrell regarding its possible use as propensity evidence.

Grounds 1 and 2 - appellant's submissions

The appellant submits that the evidence adduced in cross‑examination of Rebekah Marrell was to the effect that on the day prior to the alleged offences the appellant was with another female in his room at his sister's house and that he attempted to obtain cannabis from his sister to supply to that female. The appellant submits that this evidence is propensity evidence as it is evidence of the appellant's conduct in offering to supply cannabis to another woman, and attempting to obtain cannabis for that woman, whilst that woman was in his room at his sister's house. It is said to be similar fact evidence in that it was very similar conduct to the conduct that the complainant alleged had occurred. It is also said to be evidence of a tendency that the appellant has or had, namely to lure women into his room at his sister's house by the false offer of cannabis.[22]
[22] WAB 14.
The appellant accepts that in his closing address at the trial, defence counsel suggested that Ms Marrell was mistaken as to the date and had relied on the evidence to undermine the credibility of the complainant. However, the appellant submits that there was no evidence that Ms Marrell was mistaken as to the date and that her evidence that the incident she referred to had occurred on a Saturday was clear. The import is that the only possible relevance of the evidence was as propensity evidence.[23]
[23] WAB 14 - 15.
The appellant places particular reliance on the emphasised portion of the passage in the prosecutor's closing address referred to at [25]. It is submitted that the prosecutor, in effect, suggested to the jury that it was more likely that the appellant had lured the complainant to the house on a pretext of supplying cannabis because he had done something of a similar nature the previous day. This is said to be an invitation to engage in propensity reasoning.[24]
[24] WAB 16.
The appellant submits that the evidence was used as propensity evidence but was not admissible as such because it did not meet the requirement of having significant probative value. It is said that if the evidence was referring to an earlier incident, it was of minimal relevance in proving that the appellant had sexually penetrated the complainant without consent, because there was no evidence that the appellant used a false pretence of supplying cannabis to lure the other woman to his room, nor any evidence that the appellant had any sexual contact with that woman.[25]
[25] WAB 16 - 18.
The appellant submits that the evidence should have been excluded. Recognising that the evidence was adduced by the appellant's counsel in cross-examination without notice to the court, the appellant submits that the only practical remedy in this case was to abort the trial. The fact that defence counsel did not request such a remedy is said to be due to an oversight on the part of counsel, who failed to appreciate that the propensity evidence offered no support to the defence case.[26]
[26] WAB 17 - 18.
The appellant also submits that the evidence should not have been admitted because it did not meet the fair‑minded person test, namely whether 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. The appellant submits that there was a risk of an unfair trial in this case because evidence that the appellant had, a day prior, offered to supply cannabis to another female was highly prejudicial and suggested that the appellant was of bad character. Further, there is said to be a risk that the jury might speculate about the evidence of the prior incident and 'assume that unlawful sexual conduct had occurred at some point during that incident'.[27]
[27] WAB 18 - 19.
As regards ground 2, the appellant submits that if the evidence was admissible, the appellant suffered a miscarriage of justice due to the failure of the trial judge to give any direction as to the use that could be made of the propensity evidence. The appellant submits that, in the circumstances of this case, the trial judge was required to inform the jury that:[28]
(a)the fact that the appellant had on an earlier occasion offered and attempted to supply drugs to another woman was not, and could not, be proof that he committed the offences in the indictment;
(b)the evidence did not prove the appellant was the kind of person likely to sexually offend against women generally, noting that there was no evidence that any sexual contact had occurred during the earlier incident; and
(c)the evidence was admissible only for a limited purpose, which, on the State's case, was to prove the appellant had used a pretext to lure the complainant to his house, knowing that the same pretext had been effective in luring the other woman to his house the previous day.
[28] WAB 21.
The appellant submits that in the absence of such a direction, there was an unacceptable risk that the jury would use the evidence in an impermissible manner by reasoning that:[29]
(a)the appellant was someone who used the false offer of marijuana to lure women into his room;
(b)the appellant lured women to his room to commit sexual offences against them; and
(c)the appellant was of bad character being a drug dealer and was someone who was more likely to have committed the offences on the indictment.
[29] WAB 21 - 22.

Grounds 1 and 2 - disposition

Propensity evidence is similar fact evidence or other evidence of the conduct of the accused person, or evidence of the character or reputation of the accused person or of a tendency that the accused person has or had.[30] Such evidence is admissible if it has significant probative value and if the probative value compared to the risk of an unfair trial is such that fair-minded people would think that the public interest in adducing all relevant evidence must have priority over the risk of an unfair trial.
[30] Evidence Act 1906 (WA), s 31A.
The reference to 'other evidence of the conduct of the accused' in par (a) of the definition of propensity evidence in s 31A of the Evidence Act does not mean that regardless of the purpose for which the evidence is led, any evidence of any conduct of an accused person is propensity evidence within the meaning of s 31A. Rather, as this court observed in HTN v The State of Western Australia [No 2], characterisation of evidence as propensity evidence involves identification of (i) the work the evidence is tendered to do, and (ii) the permissible reasoning processes made available to the jury by the evidence.[31] Evidence led to suggest that (i) the accused is a particular kind of person and, on that account is more likely to have committed the charged offence(s) or that (ii) because the accused engaged in similar conduct on other occasions, it is more likely that the accused acted as charged, invites propensity reasoning and is properly characterised as propensity evidence.[32]
[31] HTN v The State of Western Australia [No 2] [2022] WASCA 51 [97].
[32] HTN [No 2] [98] - [100]; KHA v The State of Western Australia [2022] WASCA 173 [23].
The appellant's argument proceeds upon a highly contrived interpretation of the evidence of Ms Marrell. The approach of the appellant, in presenting the evidence as propensity evidence, is artificial and ignores the purpose for which the evidence was led. The fact that none of those who were present at the trial perceived a risk that the evidence would be used to support impermissible propensity reasoning supports a conclusion that such a risk was not real.
The evidence that Ms Marrell gave regarding a woman in the appellant's bedroom was not adduced by the prosecution and was not adduced for the purposes of establishing a propensity on the part of the appellant. Nor was it adduced to establish the appellant's character or to establish conduct by the appellant similar to the conduct the subject of the charges. It was adduced in cross-examination by defence counsel, not on the basis that it related to a different event but on the basis that it related to the event involving the complainant. The evident purpose was to counter the prosecution case that the appellant had lured the complainant to his house on a false pretext of supplying cannabis. Although it was suggested in submissions on the appeal that defence counsel adduced this evidence in error, it is plain that the purpose was to obtain evidence which was inconsistent with the account given by the complainant and would support the defence case that the appellant had a genuine intention of supplying cannabis to the complainant.
When seen in that light, there was, objectively, an apparent legitimate forensic purpose in defence counsel asking the questions that he did. The fact that the evidence given was less helpful than might have been expected, because Ms Marrell said that the event she recalled was on a different day, does not detract from the legitimacy of the line of questions. A rational decision by defence counsel as to the conduct of a criminal trial that can be seen to have been a legitimate forensic choice that competent counsel could fairly make will, ordinarily at least, not give rise to a miscarriage of justice.[33]
[33] Hamilton v The Queen [2021] HCA 33; (2021) 394 ALR 194 [49] (Kiefel CJ, Keane & Steward JJ).
In any event, Ms Marrell's basis for saying that the event had occurred on a Saturday appears to have been merely that her children were sleeping in and that this usually occurred on a Saturday morning. This left open a possibility that she was mistaken as to the date, a possibility that defence counsel attempted to utilise in his closing address.
It was not suggested by anyone at the trial that the evidence established a relevant tendency or was evidence of a similar fact or of similar conduct from which the jury could draw an inference that the appellant was more likely to have committed the sexual offences alleged. The absence of any such suggestion is unsurprising when the evidence is properly assessed.
The appellant's argument depends upon the jury accepting that Ms Marrell was correct as to the date and being satisfied that the events she described referred to a different woman who was in the appellant's room on the day before. However, even if the jury came to that conclusion, it does not follow that the evidence could support propensity reasoning.
Ms Marrell's evidence was that the appellant had come to her room seeking some cannabis on an early morning, that she did not have any and when she went to his room to tell him that, she saw that there was a woman in the room with him. There was no evidence or suggestion of any sexual contact between the appellant and the woman. This evidence might support an inference that the appellant had attempted to obtain cannabis to supply to a woman who was with him at the house. However, the evidence could not rationally support an inference that that woman had been lured to the house on a false pretext, nor that the appellant had done so with any intention of engaging in sexual conduct. In these respects, there was no similarity between this event and the alleged offending, and no proven tendency of a relevant type.
At the hearing of the appeal, counsel for the appellant, when asked to identify the impermissible reasoning that this evidence would invite, repeatedly referred to the offer of cannabis being used as a pretext to lure a woman to his house.[34] This submission reflects the written submissions and reveals the inherent flaw in the argument. If the evidence of Ms Marrell was referring to an earlier incident, it was not evidence of a luring or a false offer, nor did it involve evidence of a sexual offence against a woman (or indeed any sexual contact).
[34] Appeal ts 12, 18 - 21.
To the extent that it was suggested that the evidence had a prejudicial effect because it showed the appellant to be of bad character, this overlooks the fact that an offer of cannabis was plainly relevant to the circumstances of the alleged offence. Any prejudice arising from the fact that the appellant had offered illegal drugs on another earlier occasion would be minimal and was adequately dealt with in directions by the trial judge.
Contrary to the submissions of the appellant, there was no reasonable possibility that the jury would use the evidence of Ms Marrell to conclude that the appellant had a tendency to lure women to his house on the false pretext of supplying them with drugs or that he was the kind of person who would sexually offend against women generally. To reason in such a way would be to ignore the evidence that was actually given and engage in speculation, something that the jury was warned against.
As noted earlier, the appellant places particular reliance on the emphasised portion of the passage in the prosecutor's closing address referred to at [25]. However, when properly understood, that passage does not suggest that the evidence of Ms Marrell was relevant as propensity evidence. Rather, what the prosecutor suggested was that if the evidence was that another woman had been offered cannabis at the appellant's house the day before, this would explain why it would have occurred to the appellant to use an offer of cannabis to get a woman to come to his house. That is not because the earlier offer was false, as the approach to the appellant's sister makes clear, but simply because he had so recently offered cannabis to a woman who was at his house. This was not a suggestion that the appellant had any tendency to lure women to his house on a false pretext, or that he had any tendency to commit sexual offences. Furthermore, to the extent it was relevant to whether the appellant was likely to have made an offer to supply cannabis to the complainant, that was not a matter that was in contention by the end of the trial.

Thus, the prosecutor's submission as to Ms Marrell's evidence was directed to the plausibility of a factual feature of the complainant's account of the offending conduct and its circumstances, as distinct from being directed to the plausibility or likelihood of the occurrence of the charged conduct itself. As is clear from HTN [No 2], a use of the latter kind invites propensity reasoning but a use of the former kind involves using the evidence to assist in the evaluation of the complainant's evidence and does not involve propensity reasoning.[35]
[35] HTN [No 2] [107] - [110], applying HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [6].
The evidence was not propensity evidence and there was no suggestion that it could be used in such a way. It was adduced by the defence for the purpose of attempting to discredit the complainant, and that position was maintained in closing. There was no suggestion at the trial, nor could there be, that the evidence should have been excluded.
There was no occasion for the trial judge to give directions regarding the use that could, or could not, be made of the evidence as propensity evidence. There was no perceptible risk that the jury would so use the evidence. It was certainly not necessary for the trial judge to tell the jury not to use the evidence to draw inferences that would plainly have involved speculation, such as that the appellant was someone who used false offers of cannabis to lure women to his room, or that he lured women to his room to commit sexual offences. The evidence did not, and could not possibly, support such inferences. A direction in those terms would have been contrary to the interests of the appellant in that it would only serve to draw attention to speculative lines of reasoning that are highly unlikely to have occurred to the jury.
It is also significant that trial counsel did not seek a direction of the kind for which the appellant now contends. It is well established that, while the failure of counsel to seek a direction is not fatal to a successful challenge in a case in which a direction is said to be required to avoid a perceptible risk of a miscarriage of justice, the absence of an application for a direction may tend against a finding that such a risk was present.[36]
[36] De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57 [35].
There is no merit in these grounds of appeal. They have no reasonable prospect of success. Leave in respect of them should be refused.

Ground 3 - the police interview - the relevant evidence

The appellant was interviewed by police on 18 June 2020. At the time of that interview, the appellant had been remanded at Hakea Prison on other charges. Explicit references to the fact that the appellant was in prison, and to previous occasions when he was in prison, were edited out of the interview by consent. However, there were some more oblique references to when the appellant was 'in' and when he got 'out'. The appellant relies on these references, the fact that he was wearing prison greens (that is, a green prison tracksuit), reference to being charged with a 'chase' and references to a violence restraining order (VRO) to suggest that he suffered a miscarriage of justice. Particular emphasis is placed on references to the VRO as being irrelevant and prejudicial.
Early in the interview, the appellant was asked where he was living in December of 2019. The following exchange occurs:[37]
[37] GAB 10.
DET S/CON HIT: Where were you living?
[THE APPELLANT]: Uh, between Stacey's house and my sister's house in Armadale. But, um, I think around that time I had been given a VRO from my sister and had to move out 'cause she was on drug induced psychosis and moved up to Armbrook.
DET S/CON HIT: Okay. Where does Stacey live?
[THE APPELLANT]: Armbrook.
DET S/CON HIT: And what's your sister's name?
[THE APPELLANT]: [Rebekah].
DET S/CON HIT: And that's Marrell?
[THE APPELLANT]: Yeah.
DET S/CON HIT: Where was [Rebekah] living?
[THE APPELLANT]: Um, in Prout Road Armadale.
DET S/CON HIT: Do you remember what number?
[THE APPELLANT]: 13, I think.
DET S/CON HIT: Okay. And she had a VRO placed against you?
[THE APPELLANT]: Um yeah, I can't remember the exact dates, it was around the time. I'd moved out two weeks I think, around Christmas, just before Christmas time, and wasn't staying there.
The appellant stated that he had no sexual encounters with anyone at that stage, other than the girlfriend that he broke up with at around that time, who was called Stacey. He was then asked some questions regarding a motorbike and admitted that he owned several motorbikes. The questioning then returned to the timing of when he was living with his sister:[38]
DET S/CON HIT: How long were you living with your sister for?
[THE APPELLANT]: Uh, I come out in September, and when I started dating Stacey, I moved out for two or three weeks when me and her were having problems. And then after Christmastime, we reconciled and I moved back in just before New Year's. And, um, then again, I was out in January and then had to move out in February. And I've been out since February.
[38] GAB 15.
Later in the interview, the appellant denied riding the motorbike, saying that he lost his driver's licence in February 2019. He then said that he was charged with 'a chase' but that he pleaded not guilty to that charge and suggested that it related to someone else who had his registration plates on a different motorbike. He said that the registration plates on his motorbikes had been stolen some time earlier. Later in the interview, he said that in around January 2020, his sister told him that someone had come to the house and said that the appellant had been involved in 'a chase one morning'. It was at that stage that he checked his motorbikes and found that the registration plates were gone.[39]
[39] GAB 19 - 21.
The appellant denied the allegations involving the complainant and said that he had had no sexual contact with anyone other than Stacy at the relevant time, and that he had broken up with Stacy shortly before Christmas 2019. He was then asked about the timing of when he left his sister's:[40]
DET S/CON HIT: Okay. And you said during that time is when your sister served that VRO against you, that you've moved out of that premises.
[THE APPELLANT]: Mm-hm.
DET S/CON HIT: You said that there's no one else you've done sexual acts with during that month, it was only Stacey.
[THE APPELLANT]: Yeah, there were, um, someone living in the room before I moved back in with my sister. I forget his name, but he was slightly older than me, same as my sister. And he had all this stuff covered up in the room, um, yeah and I come back it was because my sister had been bashed by her then boyfriend, his name was Steve. It was his friend that was living in the back room, um, yeah, I moved him on and the boyfriend out.
[40] GAB 26.
Towards the end of the interview, the appellant was asked whether he attended his sister's Armadale house in the weekend before Christmas 2019. He replied that he did not think so, 'not for a few weeks'.[41]
[41] GAB 32.
No references to the VRO, the 'chase' or to any suggestion that the appellant was in prison at the time of the interview, or had previously been in prison, were made in either the closing addresses or the trial judge's directions to the jury.
Prior to the closing addresses, and in the absence of the jury, there was a discussion between the trial judge and counsel regarding whether anything should be said by the trial judge about the VRO in his directions to the jury. It was agreed that given that, by that stage, identity was no longer in issue, there would be no need to refer to the VRO. As to any warning by the trial judge to disregard the evidence regarding the VRO, defence counsel agreed that such a direction would draw attention to the evidence, and the preferable course was that no direction be given. There was no request for any directions regarding the other matters raised in this ground of appeal.[42]
[42] ts 177 - 185.

Ground 3 - appellant's submissions

The appellant submits that the references to the appellant being in prison, the VRO, and to 'being charged with a chase' were irrelevant and prejudicial to the appellant. It is submitted that no judicial direction in regard to this evidence could have cured the prejudice, and that the appellant suffered a miscarriage of justice as a result of the introduction of that evidence.[43]
[43] WAB 22 - 26.

Ground 3 - disposition

One of the elements that the prosecution was required to establish was identity, that is, that the appellant was the person who had committed the alleged sexual acts. At the commencement of the trial, identity was plainly in issue. The appellant, in his police interview, had denied having any contact with the complainant or AC, had denied living with his sister at the relevant time, denied riding a motorcycle at the relevant time, and denied using the application Plenty of Fish to make contact with anyone at the relevant time. No formal admissions regarding identification were made and defence counsel did not make an opening address indicating that identity was not an issue.
It only became apparent during cross‑examination of the complainant that the position being advanced by the appellant was that, whilst he may have had contact with the complainant and taken her to his sister's house, there had been no sexual contact. However, it was only in discussions with the trial judge at the conclusion of the trial that the appellant's counsel conceded that identity was not really in contention.
In these circumstances, evidence pertaining to whether the appellant was the man referred to by the complainant was relevant and admissible. Evidence regarding the VRO was relevant because the appellant had sought to rely on the existence of the VRO in his interview with police to suggest that he was not living with his sister at the relevant time. Evidence regarding the chase charge was relevant because the appellant denied riding a motorcycle at the relevant time. It is presumably for these reasons that trial counsel for the appellant did not object to the evidence or seek that those parts of the police interview be edited out. There was an apparent legitimate forensic purpose in that decision. Whilst it is true that by the end of the trial identity was no longer a live issue, that fact did not work retrospectively to render the evidence inadmissible. It is not unknown for the defence to be left at large and for concessions not to be made until the end of a trial. There may be a perceived forensic advantage for the defence in adopting such a course.
As regards references to the appellant being 'inside', all explicit references to the appellant being in prison were edited out of the police interview. The other parts that are now complained of, and the fact that the appellant was wearing prison greens, were not the subject of any objection or complaint at the trial. It is difficult to see how such objections could have been maintained without seeking to exclude the interview entirely. The appellant had an obvious interest in the interview being adduced in evidence as it contained his denials of the offending. That was even more so in circumstances where the appellant elected not to give evidence.
Furthermore, the suggestion by the appellant that the evidence complained of in this ground was highly prejudicial to him and that that prejudice could not be cured by a direction by the trial judge, cannot be accepted. The prejudice was, in our view, very slight. References to a 'chase' charge (which the appellant denied) and the VRO were highly unlikely to lead the jury to reason that the appellant was the type of person who would commit sexual offences. The references to being in prison were oblique and unlikely to have been noticed by the jury, or at least accorded any significance.
As the trial judge rightly appreciated, the difficulty with a direction to the jury regarding evidence that is of marginal relevance but has some theoretical prejudicial potential, is that it may draw the attention of the jury to matters that are unlikely to have occurred to, or troubled, them. The effect of such a direction would be to heighten the risk of prejudice rather than diminishing it. The fact that defence counsel did not seek a direction regarding these matters, and specifically agreed that one should not be given in respect of the VRO, supports a conclusion that the risk of prejudice was not such as to require one. There is no reason, in the circumstances of this case, to depart from the precept that, exceptional cases aside, parties are bound by the conduct of their counsel.[44]
[44] Hamilton [54].
There is no merit in this ground of appeal and leave in respect of it should be refused.

Ground 4 - evidence regarding MDMA

The prosecutor adduced evidence from the complainant and AC that the appellant brought MDMA to the house and that the complainant, AC and the appellant used it. There was no objection to the admission of this evidence.
In summing up, the trial judge referred to the evidence and directed the jury that it was irrelevant that the appellant had supplied illegal drugs, except to the extent of explaining how the appellant and complainant had ended up at the appellant's sister's house.[45]
[45] ts 213.

Ground 4 - the appellant's submissions

The appellant submits that only the evidence regarding the offer to supply cannabis was relevant to explaining how the complainant came to go with the appellant. It is submitted that evidence of the supply and use of MDMA was irrelevant and unnecessary in understanding the connection between the appellant and the complainant. It is submitted that the admission of this evidence occasioned the appellant material prejudice, in that it was liable to show that he had a bad character. It is said that there was a real risk that the jury would assume that because the appellant was likely to be someone who dealt in drugs, he was therefore more likely to have committed the charged offences.[46]
[46] WAB 27 - 29.

Ground 4 - disposition

The supply of MDMA was relevant to explain the nature of the relationship between the appellant and the complainant. The supply of MDMA was relevant as part of the context in which the appellant had met the complainant and AC. It was also relevant to explain why the complainant might have considered that the appellant's offer to supply cannabis was credible. This was relevant to explain why the complainant went with the appellant to his sister's house. No objection was taken to the evidence by defence counsel.
The limited relevance of the evidence was explained to the jury by the trial judge, and the jury was warned against using the evidence in any prejudicial way. It is fanciful to suggest that the jury were more likely to think that the appellant had committed the charged sexual offences merely because he had supplied MDMA, in a very small quantity, earlier in the night to the complainant and AC. The evidence was plainly admissible, and any risk of prejudice was adequately addressed by the directions. There is no reason to suppose that the jury did not comply with the directions given.
There is no merit in this ground of appeal and leave in respect of it should be refused.

Conclusion

None of the grounds of appeal has a reasonable prospect of success. Leave should be refused in respect of each of them and the appeal dismissed.

Orders

We would make the following orders:
1.Leave to appeal is refused in relation to each of grounds 1 - 4.
2.The appeal is dismissed.

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