MNA v The State of Western Australia - [2020] WASCA 84

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MNA -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 84
CORAM:   BUSS P
MITCHELL JA
DERRICK J

HEARD:   6 APRIL 2020
DELIVERED          :   29 MAY 2020
FILE NO/S:   CACR 55 of 2019
BETWEEN:   MNA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BIRMINGHAM DCJ
File Number            :   IND 36 of 2018

Catchwords:

Criminal law - Appeal against convictions - Child sex offences - Whether evidence of complaint to the children's parents was improperly admitted - Whether trial judge's direction as to use of evidence of complaint was inadequate - Whether a direction that the accused did not have to prove anything in relation to motive was required - Whether evidence of the accused's prior convictions was improperly admitted as propensity evidence - Whether evidence of complaint was improperly admitted as evidence of recent complaint - Whether trial judge's direction as to the use of propensity evidence was inadequate

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(b)
Criminal Code (WA), s 320(4), s 321(4)
Evidence Act 1906 (WA), s 31A, s 36BD

Result:

Appeal allowed
Convictions set aside and new trial ordered

Category: B

Representation:

Counsel:

Appellant	:	T F Percy QC and N Tasic
Respondent	:	R G Wilson

Solicitors:

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

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

ABR v The Queen [2020] NSWCCA 33
Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19
Beresi v The Queen [2004] WASCA 67
CB v The State of Western Australia [2006] WASCA 227
CJB v The Queen [2005] WASCA 113
Daniels v The Queen (1989) 1 WAR 435
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
HTD v The State of Western Australia [No 2] [2019] WASCA 39
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338
IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
KSN v The State of Western Australia [2017] WASCA 156
La Bianca v The State of Western Australia [2019] WASCA 105
McKinnon v The State of Western Australia [2010] WASCA 51
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
Palmer v The Queen [1988] HCA 2; (1998) 193 CLR 1
R v Freeman [1980] VR 1
R v GG [2004] VSCA 238; (2004) 151 A Crim R 92
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
Roberts v The Queen [2001] WASCA 191
SPW v The State of Western Australia [2012] WASCA 41; (2012) 220 A Crim R 301
Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769
T v The Queen [2000] WASCA 153
The State of Western Australia v Jackson [2019] WASCA 118

BUSS P & MITCHELL JA:

Introduction

The appellant was charged on indictment in the District Court with four counts of indecent dealing against two female complainants. The complainants, who will be identified as A and B, were the daughters of one of the appellant's friends. On 23 January 2019, after a trial before Birmingham DCJ and a jury, the appellant was found guilty of two of the offences, one relating to each complainant. He was acquitted of the other two offences.
In relation to A, the appellant was charged with two counts of indecent dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA) (the Code). The two counts were alleged to have occurred on the same unknown date between 1 August and 30 November 2016. The appellant was convicted of count 2 and acquitted of count 1.
In relation to B, the appellant was charged with two counts of indecent dealing with a child of or over 13 years and under 16 years, contrary to s 321(4) of the Code. The two counts were alleged to have occurred on the same unknown date between 1 October and 31 December 2016. The appellant was convicted of count 4 and acquitted of count 3.
On 5 April 2019, the appellant was sentenced to a total effective sentence of 2 years 6 months' immediate imprisonment for the offences. He was made eligible for parole.
The appellant now appeals against his conviction on three grounds:[1]
(1)The trial judge erred in law by allowing complaint evidence to go to the jury on the basis that the evidence constituted recent complaint and was thereby capable of supporting the credibility of the witness making the complaint.
(2)The trial judge erred in law in failing to direct the jury in accordance with Palmer v The Queen.[2]
(3)The trial judge erred in law in admitting the appellant's prior convictions as propensity evidence and directing the jury that the propensity evidence could be used in the same manner as other uncharged acts, further or alternatively by directing the jury that evidence of the appellant's prior convictions had significant probative value in relation to acting or allegedly acting on his sexual attraction to underage girls in the present case by touching them indecently whenever the opportunity arose.[3]
The application for leave to appeal on these grounds was referred to the hearing of the appeal.
[1] A fourth ground, contending that the accumulation of errors alleged in the previous grounds led to a miscarriage of justice, was abandoned at the hearing of the appeal: see appeal ts 44.
[2] Palmer v The Queen [1988] HCA 2; (1998) 193 CLR 1.
[3] Ground 3 was amended to include the reference to the trial judge's direction at the hearing of the appeal: see appeal ts 44.
For the reasons that follow, ground 3 is established to the extent that it contends that the trial judge erred in directing the jury as to the manner in which they could use the propensity evidence. However, ground 3 is not established to the extent that it contends that the propensity evidence was inadmissible. Neither of the other grounds of appeal are established. Leave to appeal should be granted on grounds 1 and 3, but refused on ground 2. The appeal should be allowed, the convictions set aside and a new trial ordered.

The State's case at trial

The nature of the grounds of appeal is such that it is necessary to give only a broad summary of the State's case at trial.
The charged offences were alleged to have occurred in a theatre room at the complainants' home when they were watching movies with the appellant and the complainants' father. The charged offences were alleged to have been committed on two separate occasions. On one occasion, the appellant was alleged to have twice touched A on her vaginal area with his hand. On the other occasion, the appellant was alleged to have twice touched B on the side of her breast using his fingers.
The charged offences were not the only occasion on which the appellant was alleged to have indecently touched the complainants. The State relied on evidence of uncharged acts comprising:[4]
(1)A's evidence that the appellant had once touched her bottom under her bikini in the family swimming pool and had touched her bottom on other occasions in the family home; and
(2)B's evidence that the appellant had touched her leg and the side of her breast while they watched movies together on more than one other occasion.
[4] Trial ts 144 - 145.
The State's case primarily relied on the evidence of A and B, which was pre-recorded prior to trial and in which they adopted recorded interviews which each had given to police on 7 April 2017.[5] In addition, the complainants' mother and father gave evidence of the complainants disclosing the offending in January 2017, and of a subsequent confrontation with the appellant where they put the allegations to him. A police officer, Acting Sergeant Beauchamp, tendered the complainants' birth certificates. Finally, agreed facts relating to the appellant's earlier offending were read into the transcript by the prosecutor. The earlier offending concerned the appellant's use of social media sites with the intent of procuring a person whom he believed to be a 13-year-old girl (but was actually a police officer) to engage in sexual activity.
[5] Appeal ts 81.

Defence case at trial

The appellant elected to give evidence at trial. He said that he would interact with the complainants in a physical way while watching movies. He said that he would 'poke and prod' them, 'squeeze their knees' or 'give them a quick little tickle', but that this was done in the presence of the complainants' father and the conduct was not done in a 'sexual way'.[6] The substance of the appellant's case was that he had not engaged in the conduct alleged by the complainants, and would never do such a thing.
[6] Trial ts 238 - 239, 255.
As noted in the appellant's written submissions,[7] at trial the appellant's counsel sought to:
(1)Highlight the inconsistencies between each version of events recalled by each of the complainants, from their initial complaint to their parents, their recorded interviews with the police, the additional disclosures made to the prosecutor in proofing prior to the pre-recording, as well as their evidence given at the pre‑recording, to undermine the reliability of their allegations;
(2) Challenge the plausibility of these incidents occurring, given the risk of protest by the complainants, who were only metres away from their father when the incidents are said to have taken place; and
(3) Draw a distinction between the behaviour exhibited by the appellant in relation to his prior convictions, in comparison to the offending as described by the complainants.
[7] Appellant's Submissions, par 26.
The defence case at trial involved both a contention that the complainants were lying about the events and that the complainants may have misinterpreted innocent or inadvertent touching.

Ground 1: Complaint evidence

Ground 1 seeks to challenge the admission of evidence of complaints made by the complainants to their parents.

Evidence led at trial

The evidence was first given by the complainants' mother. Before her evidence began, the following exchange occurred between the trial judge and the prosecutor:[8]
The next witness, your Honour, will be [the complainants' mother]. And perhaps if I can just indicate before the jury come in, there is some inadmissible content of [the complainants' mother's] statement. I've had a discussion with my learned friend, and I may lead her through various parts of her evidence.
BIRMINGHAM DCJ: If we work on the theory that counsel will conduct the trial, and I will only intervene if there's a problem.
[8] Trial ts 170.
The complainants' mother gave evidence to the effect that, on 14 January 2017, she observed A to be upset, and asked her what was wrong. A told her mother that the appellant had touched her twice between her legs. The complainants' mother then got the complainants' father and they both spoke to A, who repeated the allegation. They then spoke to B, who said that the appellant would poke her around the breast area like he was joking, and on one occasion touched her on the breast when she was lying on the couch after a bath and not wearing a bra.[9]
[9] Trial ts 176 - 178.
The complainants' mother also gave evidence of confronting the appellant with this information and as to his response and subsequent apology to her daughters.[10]
[10] Trial ts 179 - 180.
The complainants' father gave evidence of speaking to A with his wife, after his wife told him what A had said. His evidence was that A told him and her mother that the appellant had put his hand between her legs and under her shorts on a single occasion about four weeks prior. She said that he did it and she 'kind of froze' and 'shuffled to the side a bit'. He did it again so she got up and walked off.[11]
[11] Trial ts 205 - 207.
The complainants' father then gave evidence of speaking to B with his wife, asking B if the appellant had done anything to make her uncomfortable or had touched her inappropriately. B asked 'why', and her parents responded '[well], we just want to know if [the appellant] has done anything'. The complainants' father said that B disclosed that the appellant had touched her on her legs, around the breast area and on her ribs on numerous occasions over a period of 3 - 6 months.[12]

Trial judge's direction

[12] Trial ts 207 - 209.

After the conclusion of the evidence and before directing the jury, the trial judge discussed the content of his direction with counsel. His Honour put to the prosecutor:[13]
And then also in relation to her recent complaint evidence. Now, I must confess it wasn't entirely recent. But I'm assuming that that's the basis upon which it's been received into evidence.
[13] Trial ts 268.
The prosecutor indicated that was the basis on which the evidence was tendered and the judge indicated that there would be a 'recent complaint' direction. The appellant's trial counsel said in relation to this issue:[14]
So firstly your Honour raised the recency issue. We haven't taken issue with the recency, although it's arguably on the border. So I accept what's been said.
Counsel then raised a distinction which might be drawn as to the spontaneity of A and B's disclosures. The trial judge indicated that he did not see this as constituting a distinction as to how the evidence could be used, which went to the question of consistency.
[14] Trial ts 272.
In giving the jury general directions as to the assessment of evidence, the trial judge said:[15]
A matter to be considered when assessing the testimony, of course, is whether the witness has - says something that is different to what they've said on an earlier occasion.
You'll recall that in cross-examination both of the complainants and indeed [the complainants' parents], were each asked about and referred to statements by [the appellant's trial counsel] in respective [sic] of statements and testimony given on earlier occasions which was said to be inconsistent, in some respects, with the evidence they gave before you.
It was submitted to you that they each made statements and testified on prior occasion [sic] and included matters that were inconsistent, in some respects, with the evidence they gave before you.
[15] Trial ts 298.
The trial judge observed that the appellant's trial counsel had properly pointed out that the jury could take account of prior inconsistent statements in considering whether witnesses were reliable. He directed the jury that the witnesses' evidence was what they said in court, but that they could have regard to certain matters in considering the impact of an inconsistency on their assessment of the witnesses' evidence. His Honour said:[16]
Be aware of the discrepancies and the inconsistencies and where you find them carefully evaluate the testimony in the light of other evidence. But the assessment of credibility and the reliability of witnesses is entirely a matter for you.
[16] Trial ts 300.
Later, the trial judge gave specific directions about the complaint evidence. His Honour directed the jury that the evidence 'is to be considered by you in a limited way and is only admissible for that purpose and not otherwise.'[17] His Honour directed:[18]
[17] Trial ts 312.
[18] Trial ts 312 - 313.
The State led the evidence as to the conversation to show consistency of the conduct on the particular of the complainants.
It's something you can take into account when considering the complainant, [A's], credibility and the complainant, [B's] credibility and the truthfulness of their answer. But you can't treat it as separate or additional to their evidence or the evidence given by each of them.
It's the complainant's evidence as to what happened that you saw and heard them give that you must consider. The fact that they each later told someone the same thing or gave an account in relation to the matter, doesn't add to the truthfulness of the evidence. If a story's not true, repetition of it doesn't make it true.
However, when judging the complainants['] credibility and the truthfulness of their respected evidence [sic], you're entitled to know how each acted some time after the events to see whether they acted in a way you might expect. Whether it be young girls in their position to act in the events about which each has given evidence.
You'll have regard to the nature of the relationship and the circumstance in which the disclosures were made by each of them.
If you're satisfied that [A] first told [her parents] what happened … that's relevant to her credibility and bearing upon the consistency in her conduct and the accounts she gave before her. Similarly, in relation to [B] and the circumstances in which she made the disclosure.
But it goes only to their credibility. The timing and nature of the complaint might assist you in determining the consistency, the believability and the credibility of the complainants.
It's entirely a matter for you but you must not treat it as separate evidence that what they complain about was true.
You'll bear in mind also, as [the appellant's trial counsel] has pointed out, the inconsistencies between what each witness has said but you'll have regard to what I have said about how you deal with inconsistencies in determining the credibility of each of the witnesses.
(emphasis added)
The trial judge gave the following direction as to the timing of the complaints:[19]
There's a delay in this case, in the matter being reported. That's something for you to consider, and it's relevant. It's for you to weigh up its significance. In relation to [A], it's seemingly something in the order of about six weeks. She first spoke to her mother in around mid-January. In relation to [B], the period of delay is seemingly greater.
Persons such as the complainants might have good reason for not complaining. You will recall [the complainants' mother] said that [A] had expressed concern that her father might lose his best friend. Bearing that in mind, it's for you to determine what degree of significance you give to the delay in complaining. It's a matter for you to judge.
But I give you this direction as a matter of law. That the absence of a complaint, does not necessarily mean that the allegation of the offence is false. There might be good reasons why a victim for an offence, such as that alleged, might hesitate in making or refrain from making, a complaint about the offences alleged.
You should also bear in mind, however, that the delay in reporting of the matter, may have prejudiced the [appellant] and that given the lack of precision in which the offences are said to have occurred, such that the [appellant's] ability to recall what he may have been doing or where he might have been, is necessarily impaired.
For that reason, you need to be satisfied as to the truthfulness, accuracy and reliability of the complainant's evidence, before you can convict the [appellant] of the charges.

Appellant's position on appeal

[19] Trial ts 320.

In this court, the appellant accepts that his trial counsel did not object to the admissibility of the complaint evidence. The appellant submits:[20]
Given the way in which the trial was run, it would appear that counsel for the appellant did not oppose the evidence being admitted into evidence primarily on the basis the complaint evidence also formed the narrative of the defence theory, and also provided for general inconsistencies in the complainants' version of events.
[20] Appellant's Submissions, par 54.
The appellant submits that the question of whether the complaint evidence was sufficiently recent was 'never finally determined' prior to the evidence being led. The appellant submits that:[21]
Despite counsel not having strenuously taken the point as to the issue of recency, it is respectfully submitted that the learned trial judge should have concluded as a matter of fact that the complaint was not sufficiently recent and that no 'bolster' direction was required or appropriate.
[21] Appellant's Submissions, par 57.
In oral submissions, senior counsel for the appellant indicated that the objection was not as to the admissibility of the evidence, but its use as evidence of 'recent complaint' and the directions (particularly those emphasised in the passage quoted at [24] above) permitting the use of the complaint evidence in that manner.[22]

Disposition of ground 1

[22] Appeal ts 30 - 33, 34 - 35.

Contrary to the appellant's submissions on appeal, his trial counsel did more than fail to 'strenuously' take issue with the recency of the complaints. The effect of the discussion quoted at [15] above was that counsel had discussed the evidence of the complainants' mother and agreed what parts of her statement were admissible and would be led. The appellant's trial counsel did not dissent from that view, or take any objection to the evidence as it was given. In the passage quoted at [21] above, the appellant's trial counsel expressly indicated that no issue was taken as to recency of the complaint evidence.
There was a rational and legitimate forensic reason for trial counsel's decision not to object to admission of the complaint evidence, including as recent complaint evidence. Counsel relied on the evidence to support the appellant's case at trial that the complainants' stories had developed over time and had been influenced by the way in which they had been asked questions, and B's knowledge that A claimed to have been indecently touched by the appellant.[23] There was also a forensic advantage, in the pursuit of the appellant's case at trial, in the prosecutor adducing, in the State's case, the evidence of what the complainants told their parents (which would only be permissible if the evidence given by the parents was evidence of recent complaint).
[23] Trial ts 151 - 152; Transcript of closing submissions 15 - 16, 24 - 27.
Relevantly, s 30(3) of the Criminal Appeals Act 2004 (WA) provides:
The Court of Appeal must allow the appeal if in its opinion —
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or
(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c) there was a miscarriage of justice.
In the present case, the trial judge made no wrong decision on a question of law concerning the receipt of the evidence. The trial judge was never asked to rule on the admissibility of the complaint evidence. Nor was there any irregularity amounting to a miscarriage of justice in the admission of the evidence with the concurrence of the appellant. That is particularly so in circumstances where the appellant was represented by competent and experienced defence counsel who evidently made a tactical decision not to object to its admission because counsel reasonably took the view that the evidence would advance the appellant's case at trial.
In McKinnon v The State of Western Australia,[24] this court held that no miscarriage of justice resulted where the only inference to be drawn from the conduct of the defence case was that a forensic decision had been made not to object to complaint evidence because it was to be relied on as part of the defence case. The court applied the following dicta of McHugh J in Suresh v The Queen:[25]
[B]y not objecting to the admission of the statement and then using it to support the defence theory of the case, the appellant exercised his right to a fair trial. It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused's acquittal.
[24] McKinnon v The State of Western Australia [2010] WASCA 51 [9] - [13].
[25] Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 [23].
The same principle is applicable in the present case, and is sufficient to dispose of the ground so far as it relates to the admission of the complaint evidence. Even if the evidence was not admissible as recent complaint evidence, there is no miscarriage of justice in the receipt of the evidence without objection, when the decision not to object was taken as a rational and reasonable tactical decision by defence counsel.
There is also no substance to the complaint about the trial judge's direction.
The cases of both parties invited the jury to have regard to the consistency, or lack thereof, of what the complainants told their parents in January 2017 with the evidence the complainants gave at trial. The appellant's trial counsel contended that inconsistencies between the different accounts given by the complainants, including what they told their parents, should lead the jury to doubt the credibility and reliability of their evidence at trial.[26] The prosecutor contended that what the complainants told their parents was consistent with what they said in their evidence. She invited the jury to conclude that the complainants reacted in a way consistent with what they said happened.[27] As indicated by the exchanges between counsel and the trial judge referred to at [15] and [20] - [21] above, the evidence of the complaints was not adduced on a limited basis or for a limited purpose, even though his Honour decided, without objection, that he would give a 'recent complaint direction'.
[26] Transcript of closing submissions 16.
[27] Transcript of closing submissions 10.
The critical issue in the trial was whether the complainants' evidence at trial was credible and reliable and satisfied the jury, beyond reasonable doubt, that the accused had committed the charged offences. Both the prosecutor and the appellant's trial counsel submitted that the jury's assessment of the credibility and reliability of the complainants' evidence was informed by what the complainants told their parents. The complaint evidence was advanced by the appellant's trial counsel as evidence of inconsistency which detracted from the credibility of the complainants' evidence. It was relied on by the prosecutor counsel as evidence of consistency which buttressed the credit of the complainants. These were two sides of the same coin. While counsel advanced different submissions as to the use which could be made of the complainants' evidence, they were both inviting the jury to consider that evidence in assessing the credibility of the complainants' evidence. There was no suggestion by either party that the prosecution case was bolstered by the complainants acting in a way that a juror might expect a person subjected to an indecent assault to react immediately after it occurred.
Taken as a whole, the trial judge's direction did no more than indicate the jury could consider the complaint evidence in determining the consistency, the believability and the credibility of the complainants. Given the way in which the parties' cases were advanced to the jury, and considering the trial judge's direction as a whole, the jury would have understood that the critical issue was the consistency of the accounts. Given the course of the trial, the jury would not have understood the trial judge to be inviting them to regard the complainants' response to, and complaints in relation to, the alleged assaults as supporting the prosecution case. There was no error or miscarriage involved in the trial judge directing the jury that the evidence could be used in the manner invited by both counsel's submissions.

Ground 2: Direction as to motive

In Palmer, a prosecutor asked an accused, who was charged with sexual offences against a fourteen year old girl, whether he could suggest any reason why the girl would invent the allegations against him. The accused was unable to suggest a reason why the girl would lie. The majority of the court held that the asking of this question had such a prejudicial effect as to give rise to a miscarriage of justice. This was on the basis that to suggest the inability of the accused to furnish a motive for the girl to lie strengthened her account and diminished the standard of proof required for the prosecution to prove guilt beyond reasonable doubt.
In so ruling, the majority recognised the distinction between permissible questions by defence counsel suggesting that the complainant has a motive to lie and impermissible questions by a prosecutor as to the accused's lack of awareness of any motive for the complainant to lie. Brennan CJ, Gaudron and Gummow JJ observed:[28]
It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.
If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is 'oath against oath'. In such a case, to ask an accused the question: 'Why would the complainant lie?' is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused.
[28] Palmer [7] - [8].
In the present case, the prosecutor did not cross-examine the appellant as to whether he knew of any reason why the complainants would lie. However, the appellant's trial counsel did advance a positive case, as she was entitled to do, suggesting that B was making up her allegations to help A who B knew had complained of inappropriate touching by the appellant.
In cross-examining B, the appellant's trial counsel put to B, and B agreed, that she had a conversation with her parents after she became aware that A had said something to them.[29] Later, the appellant's trial counsel asked the following questions suggesting that B's account was motivated by a desire to assist A:[30]
Right. I want to suggest this to you and then you need to tell me if you agree or disagree. When your mum was asking you about what [the appellant] did to you, firstly you knew that [A] had said he had done something to her, correct?---Yes.
Secondly, you knew your parents were upset or appeared to you to be upset about what [A] had told them had happened, correct?---Yes.
And you knew that it would help [A] to tell your parents about something [the appellant] had done to you, correct?---No.
[29] Trial ts 118.
[30] Trial ts 119 - 120.
The prosecutor responded to this suggestion in the following terms during the course of her closing address to the jury.[31]
Some questions were put to [B] in cross-examination with the implication that she was not being honest when she said that [the appellant] did this to her.
[The prosecutor then referred to the questions, and evidence of B that her mother didn't believe her and thought she was hiding from her that the appellant had done more]
Now, ladies and gentlemen, if [B] was making this up to help [A] as was suggested to her, why would she leave the allegation there, in circumstances where she already thought that her mother did not believe that that was all he had done? You might think that she would concoct a more elaborate or a more serious allegation.
When [B] gave her evidence, she simply told what had happened to her. Nothing more and nothing less.
[31] Transcript of closing submissions 8 - 9.
In the above submissions, the prosecutor was simply rebutting the suggestion implicit in the questions posed by the appellant's trial counsel that B had a motive to lie. The prosecutor did so without suggesting that the appellant was required to prove anything or that the appellant's state of awareness about a complainant's motive to lie could buttress her evidence. She did not invite the jury to ask 'why would the complainant lie', but rather, only sought to rebut a suggestion of motive which had been advanced by the appellant's trial counsel. A prosecutor is not precluded from seeking to rebut the existence of a motive or to reduce its influence, so long as the cross-examination or argument does not go beyond that.[32] The prosecutor's argument in the present case did not transgress this boundary.
[32] CB v The State of Western Australia [2006] WASCA 227 [130].
When she addressed the jury after the prosecutor's closing submissions, the appellant's trial counsel did not actually advance a positive argument that B had lied to support her sister's complaint. However, on appeal, the appellant complains about his own trial counsel's submissions. It is said that these submissions raised the question of why A would lie. However, in our view, the appellant's reading of his trial counsel's closing takes the submission out of context. In the impugned passage, counsel was telling the jury what they should not do in delivering their verdicts.
Counsel began this part of her submission in the following manner:[33]
What I'm asking you to do, in the end, is to bring in a verdict that is based on the evidence and that follows the rules of law that the judge gives you. And let me tell you what that means in a practical sense because you may find this difficult.
That means, in your gut, you might go, 'Given what he was accused of and given the fact that I can't quite work out why [A] said this, my gut tells me maybe he did because, hey, if anyone was going to do it, it would be someone who had engaged in that kind of Internet chat in the past. My heart tells me maybe he did. But I'm a little bit worried because the truth is, when it comes to [A], her story changed. And I'm particularly worried about a couple of things. (emphasis added)
[33] Transcript of closing submissions 16.
Counsel went on to elaborate on aspects of A's evidence about which they might be worried, before continuing:[34]
So my gut tells me he probably did it because I can't think why she'd say he did if he didn't. But that my head tells me she's not a very reliable witness. So how do I deal with that?
Well, if you were at home or in the pub, you'd probably go, 'I don't know, I reckon he probably did,' much like you would when you read the paper or watch the news. But when you're in a court, members of the jury, you know how you deal with it? You follow the rules and the rules are these.
The only way you can convict [the appellant] of the crimes that he stands charged with - and that's those four charges - is if the evidence led in this trial satisfies you to the highest standard of proof known to our law, beyond reasonable doubt. (emphasis added)
[34] Transcript of closing submissions 16 - 17.
The appellant's submission on appeal focusses on the emphasised parts of the passages quoted at [46] - [47] above. But the effect of the submission, taken as a whole, is that such reasoning was not appropriate in a court of law. Counsel's submissions emphasised, rather than detracted from, the onus and standard of proof which apply in a criminal trial.
A judge is bound to give an instruction or warning to the jury if, in the circumstances of the particular case, the instruction or the warning is necessary to avoid a perceptible risk of a miscarriage of justice. This is an incident of the judge's duty to ensure the fair trial of the accused.[35] As part of this obligation, whether or not any comment is made, the trial judge must take care to ensure that the jury is not left with any impression that the accused bears any onus to establish that the complainant has a motive to lie or that the lack of any perceived motive to lie of itself justifies the acceptance of the evidence of the complainant and the rejection of the evidence of the accused.[36]
[35] La Bianca v The State of Western Australia [2019] WASCA 105 [50].
[36] CB [132].
However, in the present case, nothing said in the course of the evidence or counsel's submissions gave any reason for the jury to apprehend that the appellant bore any onus of establishing that the complainants had a motive to lie. There was no need for the trial judge to go beyond his clear standard directions as to the onus and standard of proof and the presumption of innocence. An additional warning or direction was not necessary to avoid a perceptible risk of a miscarriage of justice in the circumstances of the present case.
The appellant relied on the decision of the Court of Criminal Appeal in Beresi v The Queen.[37] That case is distinguishable from the present, and does not assist the appellant. In Beresi, the prosecutor had made the submission to the jury, in his closing address, that the complainant had no motive to lie. The credibility of the complainant in that case was very much in issue. Defence counsel had not raised the issue of motive to lie, but merely submitted that the charged offences had never been committed. The court held that a direction should have been given by the trial judge which remedied the prejudice arising from the prosecutor's submission that the complainant had no motive to lie.[38] In the present case, the prosecutor did not advance any submission that either complainant had no motive to lie.
[37] Beresi v The Queen [2004] WASCA 67.
[38] Beresi [75] - [79].

Ground 3: Propensity evidence

Although ground 3 alleges error by the trial judge in admitting evidence of the appellant's prior convictions, that decision was made by Gillan DCJ in a pre-trial ruling on 5 October 2018.[39]

The propensity evidence

[39] Trial ts 32 - 38.

The evidence was admitted by the prosecutor reading the following statement of agreed facts to the jury:[40]
[40] Trial ts 232 - 233.
On 3 July 2014 in the Perth District Court, the [appellant] was convicted following his pleas of guilty to two charges, namely that, being an adult, he used electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity.
The facts of those convictions were that on two occasions the [appellant] chatted online through social media sites with a person purporting to be a 13-year-old girl. This person was, in fact, a police officer who was posing as a 13-year-old girl.
The [appellant] chatted from his home computer at his house ... The first communication was on Wednesday, 13 November 2013 through the social networking site ICQ.
When the [appellant] first communicated with the police officer posing as a child, that person told the [appellant] that she was 13 years old and she would be 14 years old in December of that year, and that she was in year 8.
A phone call was later made by the police officer posing as a child to the [appellant] who gave his mobile phone number over the chat. This phone call was in order to confirm that she was a girl.
Later that night, the [appellant] asked the officer posing as a child via the chat room if she had hair on her vagina. She replied, 'I don't have much, no'. He then asked her if she had ever fingered it.
A little later that night, the [appellant] told the child persona that he shouldn't chat with her in that manner because she was only aged 13, and it was wrong to ask her about her private parts. He told her that he had never asked a girl her age about such things before, and that he should not be doing it.
The [appellant] continued to chat with the child persona. He told her that he had gotten hard, and that he wanted to think about her vagina. He asked the child persona if she had ever fingered her vagina, and told her that he would love to finger her vagina.
The [appellant] then asked if they could talk about it on the phone. The [appellant] then told her that she was too young, and asked her not to text back. The [appellant] did not initiate any further contact with the child persona.
Approximately three weeks later, on 4 December 2013, the police officer posing as a child contacted the [appellant] through the internet social network site Skype and asked whether she could add him as a contact.
During this chat conversation, the [appellant] asked the child persona to tell him about her boobs, and asked if she was flat or a handful.
The [appellant] talked in a sexually explicit manner and asked her if she had masturbated. He later asked her to remove her underwear, saying, 'I want to talk to you with no underwear on because I want to think about your pussy'. After speaking on this occasion the [appellant] did not contact the officer posing as a child again.
On 6 January 2014, the [appellant] was arrested at his home address. The [appellant] voluntarily spoke to police in a recorded interview and made full admissions to having the Internet conversations with the police officer who was posing as a child. (emphasis added)

It was common ground between the parties to the appeal that the nature of the communication between the appellant and the police officer on 4 December 2013 was type-written only, and that the appellant and the police officer could not see or hear each other.[41]

Pre-trial ruling that the State could rely on the propensity evidence

[41] Communication with the court on 9 April 2020.

Gillan DCJ had previously ruled that evidence to this effect was admissible under s 31A of the Evidence Act 1906 (WA). Section 31A(2) relevantly provides that propensity evidence (defined to include evidence of a tendency that the accused person has or had) 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.
Gillan DCJ held that the evidence had significant probative value in that:[42]
[I]t goes to the issue of whether any touching while sitting next to each of the complainants while watching a movie was a willed act rather than an incidental and misunderstood touching. And it has the additional capacity to rationally affect the jury's assessment of potential defences such as innocent contact or fabrication by the two complainants who are sisters. (emphasis added)
[42] Trial ts 36.
Her Honour also expressed the view that any likely unfairness to the appellant could be offset by an appropriate and considered direction to the jury which would set out the way in which the evidence could be used, namely:[43]
[W]hether the touching was deliberate, whether there was a misconstrued contact and whether there was a fabrication by … the complainants, particularly if any of those matters were raised by way of defence. (emphasis added)
[43] Trial ts 37.
It may be noted that all of those matters were raised by the appellant at trial.

Trial judge's direction

In his direction to the jury, the trial judge said that the State relied on the evidence of the appellant's prior convictions:[44]
[A]s demonstrating a tendency or a propensity of [the appellant] to have a sexual interest in young, teenage girls and to be willing to give effect to that tendency or propensity when the opportunity arose.
[44] Trial ts 314.
The trial judge directed the jury that:[45]
It's open for you to consider whether [the appellant's] conduct, the subject of the proven facts, reveals a tendency or propensity to behave sexually towards young, teenage girls. And if you're satisfied that that is the case you'd be entitled to regard that evidence or to regard that evidence when you came to consider the State's allegation against [the appellant] of other sexual offending.
Before you use the evidence in the way suggested by the State, you need to be satisfied beyond reasonable doubt that [the appellant] has a demonstrated a tendency [sic] or propensity and is willing to give effect to that a tendency [sic] or propensity.
[45] Trial ts 314.
The trial judge told the jury that the question was whether the appellant had the tendency at the time of the charged offences against the complainants, and it was for the jury to determine the significance to be attributed to the past conduct.[46] He cautioned the jury as to a manner in which the evidence of prior offending could not be used, in terms about which there is no complaint.[47]
[46] Trial ts 315.
[47] Trial ts 315 - 316.
The trial judge then moved to direct the jury on the use which might be made of the complainants' evidence of uncharged sexual conduct by the appellant towards them. His Honour did so in the following terms:[48]
As with the evidence of the [appellant's] conviction, the State leads the evidence of the other events because they say it shows that the [appellant] had a sexual interest in young, teenage girls and was prepared to act on that tendency when the opportunity arose. Therefore, it's more likely that the accused did the acts that you're now considering.
The evidence of the other incidents is part of the circumstances against which you are to judge whether the offences occurred in the indictment. If you're considering the evidence of the other conduct of the [appellant] you must be satisfied first that it occurred and you must be satisfied beyond reasonable doubt that that conduct proves that the [appellant] had a propensity or tendency to have an interest in young, teenage girls.
… The question is whether you're satisfied in relation to, whether it be from the convictions or in relation to other touching, that the accused had that tendency or propensity to act in a sexual way towards – in a sexual interest with teenage girls in which they would be prepared to give effect to it. It's only if you're satisfied that he has that interest, could it be of any assistance to you in your determination. (emphasis added)
[48] Trial ts 317.
The trial judge's direction invited the jury to use the evidence of prior convictions as evidence going to whether the appellant did the charged acts.

General principles

The principles governing the admission of propensity evidence under s 31A of the Evidence Act were recently summarised by this court in The State of Western Australia v Jackson.[49] It is unnecessary to repeat that summary in the present case.
[49] The State of Western Australia v Jackson [2019] WASCA 118 [18] - [27], [48], [52] - [54], [63], [73] - [74].
In Jackson, the accused was charged with indecently dealing with two 12-year-old girls whom he did not know by touching their buttocks as he passed them in a supermarket aisle. He was also charged with possessing child pornography, comprised of pictures of pre-pubescent girls posing in bathers or underwear, which was found (in four cases open) on an electronic device. This court was considering an appeal, before trial, against the decision to order separate trials of the indecent dealing and child pornography charges.
In resolving that question, the court in Jackson determined the question of whether the evidence relied on to support the child pornography charges was admissible under s 31A to support the prosecution case on the indecent dealing charges. Applying the decision of the High Court in McPhillamy v The Queen,[50] the court held that the child pornography evidence did not have significant probative value for the purpose of proving that the accused in fact touched the girls on the buttocks in the supermarket aisle. However, the court held that the evidence did have significant probative value for the purposes of proving that any independently established touching was deliberate and sexually motivated, and thus indecent.

Admissibility of propensity evidence in the present case

[50] McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045.

Regardless of the reasons that informed Gillan DCJ's decision to admit the propensity evidence, the determination of whether the trial miscarried in consequence of its admission is concerned with the use made of the evidence at the trial.[51] It is for this court to form its own view as to whether the evidence had significant probative value.
[51] McPhillamy [11].
As was noted in Jackson,[52] 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.
[52] Jackson [52].
In the present case, the appellant gave evidence that he would touch the complainants in a non-sexual manner from time to time, including by playfully poking B in the ribs[53] and squeezing A's knee.[54] The defence case raised the issue of whether any touching may have been innocent or accidental, or misinterpreted by the complainants.
[53] Trial ts 241.
[54] Trial ts 249.
In our view, the evidence of the appellant's prior convictions did have significant probative value as to the issue of whether any touching that did occur was deliberate and sexually motivated (so as to be indecent) on the same basis that propensity evidence was admitted in Jackson.[55]
[55] Jackson [56] - [62], [68].
One feature which might distinguish the present case from Jacksonconcerns the nature of the alleged conduct relating to A. Unlike the touching on the buttocks alleged in Jackson, the appellant was alleged to have touched A on the vagina, in a manner that undoubtedly offends against currently accepted community standards. On A's evidence, taken at its highest, the conduct the subject of count 2 involved the appellant placing his hands down her pyjama pants and underwear from the front and moving it around there for close to a minute.[56] If the jury were satisfied beyond reasonable doubt that this conduct occurred deliberately, then there could be no doubt that the touching was indecent.
[56] See CWI ts 9, 13; trial ts 70 - 71.
However, A's account of the manner and nature of the touching was challenged in cross-examination, and her account was not always entirely consistent. For example, in her child witness interview A was unsure whether the appellant's hand went under her underwear,[57] and she was equivocal as to whether the appellant's hand went under her clothing at some points in her evidence.[58] In our view, the defence case left open the issue of whether some inadvertent touching, which was not sexually motivated, may have accidentally occurred in the course of 'horseplay'. The indecent character of the touching was also in issue in relation to count 1, given that A gave evidence as to being unsure whether the appellant actually touched her vagina or only her upper thigh area, and whether it was over or under her clothing.[59]
[57] CWI ts 8.
[58] Trial ts 65 - 66.
[59] Trial ts 69.
The trial judge correctly told the jury that, to be indecent, the touching which occurred had to be deliberate touching which had a sexual character, and the intent and purpose of the touching was a factor to be considered in deciding whether it had a sexual character.[60] The question of whether any touching of A's groin area may have been innocent and accidental, rather than deliberate and sexually motivated, remained a live issue for the jury to consider at trial.
[60] Trial ts 304 - 305.
The fact that the appellant had a sexual interest in girls about 13 years in age, manifested by his conversations with the police officer posing as a 13-year-old girl, makes it more likely, to a significant extent, that in the objective circumstances in which the contact allegedly occurred, any actual contact with A (a 12-year-old girl) in the groin area and B (a 14-year-old girl) in the breast area was deliberate and sexually motivated, as opposed to innocent or accidental. In our view, if actual contact was proven by other evidence which was admissible for that purpose, evidence as to the appellant's sexual interest in children was admissible for the purpose of evaluating whether that contact was deliberate and sexually motivated.
We note that the approach taken by this court in Jacksonreflects that adopted by the New South Wales Court of Criminal Appeal in ABR v The Queen.[61]
[61] ABR v The Queen [2020] NSWCCA 33 [31] - [39].
Therefore, in our view, the propensity evidence had significant probative value as to whether contact independently established by other evidence was deliberate and sexually motivated. It follows, in our view, that the evidence of the appellant's prior convictions was admissible on the basis that it had significant probative value to that issue. However, for the reasons explained at [79] - [89] below, in our view, this evidence was not admissible for the purpose of proving that the alleged contact actually occurred.
While senior counsel for the appellant did not abandon the challenge to the admissibility of the impugned evidence,[62] he conceded that, adopting the approach in Jackson, the impugned evidence had significant probative value as to the issue of whether any touching was innocent.[63] In our view, for the reasons explained above, that concession was properly made.

The trial judge's direction

[62] Appeal ts 43.

[63] Appeal ts 40.

The appellant's main point on ground 3 concerned the adequacy of the trial judge's direction rather than the admissibility of the propensity evidence. As noted above, the trial judge's direction indicated that the jury could use the evidence of the appellant's prior convictions in determining whether the appellant did the charged acts: i.e. whether he touched A in the area of her vagina, and whether he touched B on the side of her breast. If the evidence had no significant probative value in relation to that issue, then a miscarriage of justice will have arisen by the absence of a direction limiting the use which the jury could make of the evidence accordingly.
The facts in issue were whether the appellant touched A on the vagina and B on her breast. It is necessary to consider the extent to which the fact that the appellant engaged in the conduct with the police officer posing as a 13-year-old girl makes it more likely that he touched the complainants in the manner charged in the present case.
Engaging in sexualised conversations with the 13-year-old child persona indicates that the appellant had, at that time, a sexual interest in girls of about the complainants' age. However, as was noted in Jackson,[64] the mere fact that an accused has a sexual interest in persons in the same class as a complainant is not usually of significant probative value in determining whether a complainant's account of the accused's conduct is true. Further, as was noted in McPhillamy:
(1)Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value.[65]
(2)Where the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together.[66]
[64] Jackson [73].
[65] McPhillamy [27].
[66] McPhillamy [31].
In the present case, the prior conduct involved a person other than the complainants. The conduct did not involve touching the child persona, but concerned sexually explicit conversations. It occurred some 3 years prior to the charged offending involving the complainants. The child persona was not known to the appellant. The conduct did not involve the level of brazenness demonstrated by indecently dealing with the complainants while their father was in the same room. (We do not accept the submission by counsel for the State[67] that communicating with the child persona on the telephone involved 'brazen' conduct.) These features operate to distinguish the charged offending from the earlier offending. The prior offending reveals the appellant's sexual interest in girls of about the complainants' age, but that of itself is not sufficient to give the evidence significant probative value in relation to whether the appellant actually touched A and B as alleged. While the prior offending shows that the appellant acted on that sexual interest in the past, he did not do so in the manner alleged by the complainants, that is, by engaging in indecent touching.
[67] Appeal ts 45.
The State submits that, in this case, the link between the previous offending and the charged conduct is to be found in the content of the conversations which the appellant had with the 13-year-old child persona. In those conversations, the appellant indicated that he wanted to do to the child persona acts of a similar kind to those which he was alleged to have performed against the complainants. The State submits that this goes beyond evidence of mere sexual interest of the sort that would properly be regarded as lacking significant probative value. It is evidence of the appellant's own stated desire to act upon his sexual interest in the manner that he described to the child persona, and which in a general sense reflected what he was alleged to have done to the complainants.
As noted above, part of the appellant's defence at trial was to contend that the complainants may have been lying about the touching having occurred. The appellant's evidence was that there was 'no way in the world' he would ever do such a thing.[68] The State contends that, in assessing whether the complainants may have been lying about the appellant touching them as alleged, and in assessing the appellant's evidence that he would never do such a thing, the fact that the appellant had told someone, who he thought was a 13-year-old girl, that he wanted to touch her indecently is significant.
[68] Trial ts 253.
We accept that the evidence of the appellant's conduct with the child persona is relevant to the issue of whether the appellant touched the complainants in the manner indicated by the State. It may be thought unlikely that the complainants, who were not aware of the appellant's previous offending, would fabricate evidence about him engaging in conduct which reflected the sexual interest he had expressed to a person he thought was a girl about the same age as the complainants. The statements by the appellant to the 13-year-old child persona that he wanted to touch her was likewise relevant in assessing the appellant's evidence that he would never act in the way alleged by the complainants. However, the question is not whether the evidence is relevant but whether it has sufficient importance to give it significant probative value in relation to whether he actually touched A and B.
It may be thought to be an unlikely coincidence that the subject of a child complainant's fabricated allegation of sexual conduct would just happen to be a person who, unknown to the complainant, has demonstrated a sexual interest in children. However, if that were sufficient to give evidence of sexual conduct directed to a child other than the complainant significant probative value, then the threshold in s 31A(2)(a) would be met in almost every case in which a person charged with child sexual offending had also previously demonstrated a sexual interest towards a child other than the complainant. The decision in McPhillamy, and the decision of the majority in Hughes v The Queen,[69] indicate that the combination of an allegation of fabrication by a child complainant and evidence that an accused has demonstrated a sexual interest towards another child is not generally sufficient to give evidence significant probative value. As those cases emphasise, it is the accused's sexual interest in children together with the accused's tendency to act on that interest which is likely to be influential to the determination of whether the reasonable possibility that the complainant has fabricated his or her account has been excluded.
[69] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 (Kiefel CJ, Bell, Keane and Edelman JJ).
In Hughes, the majority indicated that whether a tendency to act on the interest has significant probative value depends on the particularity of the tendency and a consideration of the circumstances of the case.[70] Later, the majority observed:[71]
A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant.
[70] Hughes [40].
[71] Hughes [64].
In the present case the propensity was left to the jury at a very high level of generality. The propensity contended for by the State, and the subject of the trial judge's direction, was a tendency 'to have a sexual interest in young teenage girls and give effect to that when the opportunity arose'.[72] If the propensity is characterised in that very general way, without specifying the manner in which the appellant acted on his sexual interest, it does not provide significant support for a finding that the appellant acted on that sexual interest by touching the complainants.
[72] Trial ts 314.

A more particular description of the propensity demonstrated by the evidence was the appellant's tendency to express his sexual attraction to girls of about the complainants' age in electronic communications. That description identifies the manner in which the appellant had previously acted on his sexual interest. It reflects the fact that the appellant's conduct with the child persona did not involve touching at all and did not establish a tendency to indecently touch girls of about the complainants' age. But describing the tendency in these more specific terms - which does not involve touching - highlights the difficulty in concluding that the evidence had significant probative value in relation to the issue of whether the appellant touched the complainants.
In our view, in the circumstances of the present case, differences between the appellant's conduct with the child persona and that alleged against the complainants precludes a conclusion that evidence of the prior conduct had significant probative value in relation to the issue of whether touching of the complainants occurred. The conduct with the child persona did not involve touching at all. The propensity demonstrated by the evidence was the appellant's tendency to express his sexual attraction to girls of about the complainants' age in electronic communications. The propensity evidence did not establish a tendency of the appellant to touch girls of about the complainants' age. The tendency to express sexual attraction in electronic communications did not have sufficient importance to the rational assessment of whether the appellant touched the complainants to give it significant probative value in relation to that issue.
Therefore, the present case falls into the same category as Jackson. The evidence of the appellant's prior convictions did not have significant probative value on the issue of whether the appellant in fact physically touched or dealt with the complainants as alleged. However, if the jury were satisfied that the appellant did in fact physically touch or deal with the complainants as alleged, then the propensity evidence had significant probative value in relation to whether the touching or dealing may have been innocent and accidental, rather than deliberate and sexually motivated.
Because the propensity evidence was admissible for a limited purpose, it was incumbent on the trial judge to direct the jury on the permissible limits of the use of the evidence. The jury in the present case should have been given a direction to the effect that they could not have regard to the propensity evidence in determining whether, and in what manner, the appellant touched A in the groin area or touched B on the breast. That is, the jury should have been given a direction to the effect that they could only have regard to the evidence of the appellant's past convictions if other evidence satisfied them, beyond reasonable doubt, that the alleged touching occurred. In that event, the jury could be directed that:
(1)If the jury were satisfied beyond reasonable doubt that the alleged touching occurred, they must then determine whether they are satisfied beyond reasonable doubt that the touching was deliberate and indecent.
(2)It was open to the jury, should they so decide, to find that the evidence of the appellant's prior convictions is evidence that he had a sexual interest in girls of about the complainants' age.
(3)Should the jury so find, it was open to the jury to take into account the existence of the sexual interest together with all other relevant evidence (including the evidence as to the facts and circumstances of the appellant's prior convictions) which the jury accepts, in deciding whether they are satisfied beyond reasonable

doubt that the touching of the complainants occurred deliberately and had a sexual character, so as to be indecent.

The absence of a direction identifying the limits of the permissible use of the propensity evidence gave rise to a miscarriage of justice in all the circumstances of this case. The State did not suggest that the 'proviso' in s 30(4) of the Criminal Appeals Act could be applied in these circumstances.

Orders

For the above reasons, we would make the following orders in the appeal:
(1)Leave to appeal is granted on grounds 1 and 3.
(2)Leave to appeal is refused on ground 2.
(3)The appeal is allowed.
(4)The convictions on counts 2 and 4 of District Court Perth indictment 36 of 2018 are set aside and a new trial is ordered.

DERRICK J:

I have had the benefit of reading the draft joint reasons for judgment of Buss P and Mitchell JA.
I agree with Buss P and Mitchell JA that ground 1 of the appeal should be dismissed, although I propose to state my own reasons for arriving at this conclusion.
I agree for the reasons given by Buss P and Mitchell JA that ground 2 of the appeal should be dismissed.
I would allow ground 3(a) of the appeal. I agree with Buss P and Mitchell JA that ground 3(b) of the appeal should be allowed. I propose to state my own reasons for arriving at these conclusions.

The offences and the cases of the parties at trial

In pars 1 ‑ 4 of their reasons Buss P and Mitchell JA refer to the offences which the appellant was charged with and convicted of. It is unnecessary for me to repeat what their Honours have said in this regard.

In pars 7 ‑ 13 of their reasons Buss P and Mitchell JA summarise the facts of the offences of which the appellant was convicted and the respective cases of the State and the defence at trial. Save for their Honours' statement that the defence case at trial involved a contention that the complainants may have misinterpreted 'inadvertent' touching, I respectfully adopt their Honours' summary. I will, however, say more about the respective cases of the State and defence at trial when I deal with ground 3(a).
Like Buss P and Mitchell JA I will identify the complainants as A and B. I will identify the complainants' mother and father as C and D respectively.

Ground 1

Ground 1 is expressed in the following terms:
The learned trial judge erred in law by allowing the complaint evidence by the witnesses A and B to go to the jury on the basis that the evidence constituted recent complaint and was thereby capable of supporting the credibility of the witness making the complaint.
Thus the allegation is that the judge made a wrong decision on a question of law within the meaning of s 30(3)(b) of the Criminal Appeals Act 2004 (WA) (CAA).
The evidence of complaint the subject of this ground was the evidence adduced as to the complaints made by A and B to C and D.
It is important to recognise at the outset that the appellant by this ground does not contend that the evidence of complaint adduced at trial was not admissible at all. The appellant accepts, as he must, that the evidence of complaint was admissible, or at least was rendered admissible, by the nature of his case. The appellant wanted the evidence of complaint to be before the jury so that he could attempt to undermine the credibility of each of the complainants by highlighting the inconsistencies between the versions of events recalled by each of them in their initial complaint to their parents, in their recorded interviews with the police, in their additional disclosures made to the prosecutor during proofing prior to the pre‑recording of their evidence, and in their evidence given at the pre‑recording.[73] The contention advanced by this ground is that the evidence was not admissible, and therefore could not be used by the jury, as evidence of recent complaint. Accordingly, the ground gives rise to the following questions for determination:
1.Was the complaint evidence admissible as evidence of recent complaint?
2.If the complaint evidence was not admissible as evidence of recent complaint, did the judge make an error of law occasioning a miscarriage of justice in giving the directions that he did in relation to the use that could be made of the evidence?
[73] Appellant's submissions [26].
I will deal with each of these questions in turn.

Was the complaint evidence admissible as evidence of recent complaint?

The evidence of complaint

In their reasons Buss P and Mitchell JA set out the evidence given by C and D as to the complaints made to them by A and B. A and B also gave evidence of making their complaints to C and D although it is not, in order to deal with the ground of appeal, necessary to make reference to the detail of their evidence in this regard.

The timing of the complaint made by A

The particulars of the offence charged in count 2, this being the offence of which the appellant was convicted of having committed against A, alleged that the offence was committed on a date unknown between 1 August 2016 and 30 November 2016.
In the child witness interview conducted with her on 7 April 2017, A initially stated that although she was not sure, she thought the offence was committed in October or September 2016 because it was before the school summer holidays and was 'probably about term 3 or 4'.[74] A said that the offence definitely occurred before the December school holidays.[75] A little later during the interview A confirmed that the offence had been committed while she was still going to school.[76]
[74] Child witness interview ts 14.
[75] Child witness interview ts 14.
[76] Child witness interview ts 17.
In her pre‑recorded evidence A stated in her evidence‑in‑chief that she definitely knew that the offence was committed in the summer holidays.[77] However, in cross‑examination A gave the following evidence:
1.She could not say that the offence was committed in the summer holidays because it could have been before the summer holidays;[78]
2.The earliest the offence could have been committed was around August;[79]
3.The offence could have been committed 'on the holidays from term 3 to term 4';[80]
4.She did not know if the offence was committed during a holiday time or a school term;[81]
5.The latest time at which the offence could have been committed was November 'when it was still school and not holidays';[82] and
6.She does not remember the exact date on which the offence was committed, but she was clear that it occurred before the end of year school holidays for 2016.[83]
[77] Pre-recording ts 46 ‑ 47.
[78] Pre-recording ts 79.
[79] Pre-recording ts 80.
[80] Pre-recording ts 80.
[81] Pre-recording ts 80.
[82] Pre-recording ts 80.
[83] Pre-recording ts 80.
As to when A spoke to her mother and made the relevant complaint, A said in her child witness interview that she spoke to her mother in January or February 2017.[84] C's evidence in relation to the timing of A's complaint was that the complaint was made to her and D on 14 January 2017.[85]
[84] Child witness interview ts 17.
[85] Trial ts 176.
Accordingly, on the evidence given by A and C, the shortest period of time that could have elapsed between the commission of the offence and the making by A of her complaint is approximately six weeks (that is, from the end of November 2016 through to 14 January 2017), and the longest period of time that could have elapsed was approximately 28 weeks (that is, from the beginning of August 2016 through to the end of February 2017).

The timing of the complaint made by B

The particulars of the offence charged in count 4, this being the offence of which the appellant was convicted of having committed against B, alleged that the offence was committed on a date unknown between 1 October 2016 and 31 December 2016.
In the child witness interview conducted with her on 7 April 2017 B initially said that the last time that the appellant had done anything to her while they had been watching a movie (this on the State's case being the occasion of the appellant's offence) was before New Year's Eve but that she did not know exactly when.[86] A little later in the interview B said that she thought that the offence occurred a couple of weeks before New Year's Eve because the appellant had not come over for a couple of weeks.[87] Later again in the interview B confirmed that the New Year's Eve that she had spoken about was the New Year's Eve that had 'just gone'.[88]
[86] Child witness interview ts 7.
[87] Child witness interview ts 11.
[88] Child witness interview ts 17.
In her pre‑recorded evidence B said in her evidence‑in‑chief that the offence was committed towards the end of 2016.[89] In cross‑examination B said that although she could not remember the date of the offence, it definitely occurred in 2016, that it could not have been in January 2016 and that the earliest date it could have occurred was 'maybe like October' of 2016.[90] B further said that the latest the offence could have been committed was November 2016.[91]
[89] Pre-recording ts 96.
[90] Pre-recording ts 101.
[91] Pre-recording ts 101.
As to the timing of her complaint to her mother and father, B in her child witness interview said that she could not recall the exact date on which she spoke to her parents but that it was in the school holidays and after the New Year had passed.[92]
[92] Child witness interview ts 21.
C's evidence was that the discussion that she and D had with B took place on 14 January 2017.[93]
[93] Trial ts 176.
Accordingly, on the evidence ultimately given by B and C, the shortest period of time that could have elapsed between the commission of the offence and the making by B of her complaint is approximately six weeks (that is, from the end of November 2016 through to 14 January 2017) and the longest period of time that could have elapsed was approximately 15 weeks (that is, from the beginning of October 2016 through to 14 January 2017).

Legal principles relating to the admissibility of recent complaint evidence

The principles relating to the admissibility of recent complaint evidence can be stated as follows:
1.The doctrine of recent complaint is an exception to the rule against prior consistent statements and the rule against hearsay;[94]
2.When evidence of a complaint is admissible under the doctrine of recent complaint it is not admissible as evidence of the facts in issue. Rather, it is admissible to buttress or bolster the complainant's credibility as a witness by demonstrating consistency of conduct;[95]
3.In order for evidence of complaint to be admissible under the doctrine of recent complaint, the complaint must be made at the first reasonable opportunity after the commission of the offence; as speedily as can reasonably be expected;[96]
4.A trial judge, in deciding whether a complaint was made at the first reasonable opportunity, must take into account all the relevant facts and circumstances of the case. The question must be judged by reference to the sensitivities of the complainant and the circumstances in which the complainant was placed at the time;[97]
5.The decision in a particular case as to whether a complaint has been made at the first reasonable opportunity is an evaluative judgment and will often involve questions of fact and degree;[98]
6.Two or more complaints can be proved so long as each can fairly be regarded as having been made at the first reasonable opportunity after the offence and each is made within a brief time of one another;[99]
7.For evidence of complaint to be admissible under the doctrine of recent complaint, the complaint must be made freely and voluntarily. The mere fact that the complaint is made in answer to a question does not render the evidence of the complaint inadmissible. However, if the complaint is elicited by questions that are in substance suggestive, leading, inducing or intimidatory this will be a factor that weighs against admissibility;[100] and
8.The ultimate question must always be does the complaint, in the circumstances in which it was made, bolster the complainant's credibility as a witness.[101]

Analysis

[94] Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 [4]; Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 [22] ‑ [25]; SPW v The State of Western Australia [2012] WASCA 41; (2012) 220 A Crim R 301 [49]; KSN v The State of Western Australia [2017] WASCA 156 [39].

[95] Azarian v The State of Western Australia [24], [134]; SPW v The State of Western Australia [50]; KSN v The State of Western Australia [40].

[96] Suresh v The Queen [4]; CJB v The Queen [2005] WASCA 113 [8] ‑ [9]; SPW v The State of Western Australia [51]; KSN v The State of Western Australia [41].

[97] CJB v The Queen [9]; SPW v The State of Western Australia [53] ‑ [56].

[98] SPW v The State of Western Australia [57].

[99] Daniels v The Queen (1989) 1 WAR 435, 443; T v The Queen [2000] WASCA 153 [13]; SPW v The State of Western Australia [69] ‑ [70].

[100] Roberts v The Queen [2001] WASCA 191 [25] ‑ [29]; Azarian v The State of Western Australia [27], [119], [123] ‑ [127]; SPW v The State of Western Australia [58] ‑ [67].

[101] R v Freeman [1980] VR 1, 5; SPW v The State of Western Australia [68].

The evidence adduced at trial was capable of establishing that the appellant was a very close friend of A's and B's father and their family generally, that A and B were aware of their father's close friendship with the appellant, that the appellant would visit A's and B's home on a regular basis (approximately once or twice a week), that A and B were close to the appellant, and that A and B would refer to the appellant as their second dad.[102] These circumstances can be viewed as providing a good explanation for why A and B may have each been reluctant to, and may have taken some time to, make a complaint about the offences committed against them. However, whether there was a good explanation in the evidence for A and B delaying in making a complaint about the offences is not determinative of the question whether the evidence of the complaints made by either or both of them was admissible as evidence of recent complaint. The existence of an explanation for a delay does not mean that a complaint is made at the first reasonable opportunity, this being a point which in my view the respondent in its submissions failed to properly address.[103] As was stated by Eames JA (Warren CJ and Batt JA agreeing) in R v GG:[104]
The situation of a child victim of sexual assault might well be such as to cause delay in making complaint, where an adult would be less inhibited (See M v The Queen (1994) 181 CLR 487, at 514-515 per Gaudron J). Care needs to be taken by the trial judge, however, when considering such factors. As Winneke P makes clear in R v Knigge ((2003) 6 VR 181, at [19] ‑ [20]), the fact that the making of complaint is delayed for good reason, in particular because of the age of the complainant, cannot be used to convert what is not a 'recent' complaint into what is a 'recent' complaint.
[102] A's child witness interview ts 4 ‑ 5, 13; B's child witness interview ts 6, 11, 17; B's pre-recording ts 94 ‑ 95; Trial ts 172 ‑ 173, 177, 203.
[103] Of course, in this state in the trial of a person for a sexual offence whenever a question is asked, or evidence is given, that tends to suggest an absence of complaint or a delay in complaint, the judge is required by s 36BD of the Evidence Act 1906 (WA) to give a warning to the jury that an absence of complaint or a delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and that there may be good reasons why a victim of an offence such as that alleged may hesitate or refrain from making a complaint about the offence. Such a direction was given by the judge in the present case: Trial ts 320.
[104] R v GG [2004] VSCA 238; (2004) 151 A Crim R 92 [45].
A was 12 years old at the time of the offence which the appellant was convicted of having committed against her. She lived at home with her parents and her older sister. The appellant was not part of A's household. Although the appellant was a regular visitor to A's house he was quite obviously not a continuing presence. Indeed, there was evidence given by C, D and the appellant to the effect that the frequency of the appellant's visits to the house to watch movies decreased at some point during December 2016 (on the appellant's account due to him playing indoor soccer on Friday nights).[105] There was no evidence to the effect that there were any difficulties in the relationship between A and her parents. Nor was there any suggestion in the evidence that A had been threatened or coerced by the appellant not to make a complaint.
[105] Trial ts 175 ‑ 176, 186, 200, 213, 224 ‑ 225, 244, 261.

My above stated conclusion should not be taken as suggesting that evidence of a sexual interest will always be of significant probative value in cases in which indecency is an element of the offence and is in dispute. Much will depend on the detail of the evidence, the nature of the sexual interest and the particular allegations made in the case.[164] For example, if the evidence is not capable of proving that the accused person had the relevant sexual interest at the time of their alleged commission of the indecency offence, the evidence of the sexual interest is unlikely to be significantly probative of the indecency element of the offence. To give another example, evidence that an adult male has a sexual interest in adult females is unlikely to be significantly probative of whether the adult male's touching of the adult female in a particular way is indecent given that as a matter of common experience many adult men are sexually attracted to adult females. Further, and quite obviously, if the indecency element of an alleged offence is not in dispute (that is, is not a fact in issue because it is admitted or accepted that if the relevant act or dealing occurred it was indecent), then propensity evidence of the person's tendency to have the relevant sexual interest will not be admissible to prove the indecency element.
[164] The State of Western Australia v Jackson [66].
Thus, for the reasons I have stated, if contrary to the conclusion that I have expressed the indecency element was a fact in issue, the evidence of the appellant's tendency was, in my view, admissible to prove the indecency element of the charged offence.

Was the evidence of the tendency significantly probative of the charge concerning B?

The conduct the subject of the offence of which the appellant was convicted of having committed against B was a touching of B's breast. More specifically, the conduct was comprised of the appellant, while sitting next to B in the theatre room of her house and while in the presence of A and D, crossing his arms and using his fingers to touch the side of her breast.
Although the judge identified for the jury the critical issues for determination to be whether the appellant deliberately touched B in the way alleged and whether the touching, if it occurred, was indecent, once again, the indecency element of the charged offences was not actually in dispute. As was in effect accepted by the appellant at trial, albeit not expressly by way of formal admission or concession, if the jury were satisfied beyond reasonable doubt that he had deliberately used his fingers to touch the side of B's breast in the circumstances in which the touching was alleged to have occurred, it would not have been reasonably open to them to find that the touching was anything other than indecent, such conduct being obviously sexual. In other words, the real question for the jury in deciding if the State had proved that the appellant committed the offence of which he was ultimately convicted was whether the appellant deliberately touched B on the side of her breast as alleged any non-deliberate touching not being capable of constituting a dealing for which the appellant could be held criminally responsible. It follows, in my opinion, that the question that must be considered in determining the ground of appeal so far as it relates to the offence concerning B is whether the propensity evidence was admissible to prove that the appellant deliberately touched B on the side of her breast as alleged. This was, in my view, the fact in issue with reference to which the admissibility of the evidence of the appellant's tendency has to be assessed.[165]
[165] The State of Western Australia v Jackson [52].
Accepting, for the reasons I have already given, that the propensity evidence was capable of proving that the appellant had, at the time of the alleged commission of the offence against B, a sexual interest in young teenage girls, the question is whether the evidence had significant probative value in showing that the appellant acted against B in the way alleged.
The evidence of the appellant's tendency to have a sexual interest in young teenage girls and to act on that interest by communicating and interacting with them in a sexually explicit manner using electronic means was, in my view, relevant to the proof of the allegation that the appellant had engaged in the sexual conduct comprised of deliberately touching B on the side of her breast in the manner and circumstances alleged. However, and for substantially the same reasons as I have given above in relation to the charge concerning A, I am not satisfied that evidence of the appellant's tendency was significantly probative of the allegation that the appellant deliberately touched B on the side of her breast. More specifically, I am not so satisfied for the following reasons.
First, there is a relatively obvious and significant difference between a tendency to act on a sexual interest in young teenage girls by communicating and interacting with them in a sexually explicit manner using electronic (non‑audiovisual) means, and a tendency to act on a sexual interest in young teenage girls by actually proceeding to touch them in a sexual manner. As I have stated, the expression via the type‑written word of a desire to perform a particular sexual act or acts against a young teenage girl is significantly different to the expression of such a desire by proceeding to physically touch a young teenage girl in an overtly sexual way.
Second, the conduct of the appellant in using electronic means to communicate and interact with the child persona did not involve the level of brazenness alleged to have been demonstrated by the appellant in touching B on the side of her breast while her father and sister were in the same room in close proximity to her. Again, I do not accept the respondent's submission that the appellant's prior conduct in interacting with the child persona by electronic means in a sexually explicit way was brazen conduct.
Third, the child persona was not known to the appellant. B, on the other hand, had a close relationship with the appellant.
Fourth, although the evidence was capable of proving that the appellant had, in November and December 2013, a willingness to act on his sexual interest in young teenage girls by communicating and interacting with them in a sexually explicit manner using electronic means, there was no evidence that the tendency had manifested itself since that time. The evidence of the appellant's tendency was not capable of proving that he had in any way acted on his sexual interest in young teenage girls at a time that was substantially contemporaneous with, or even temporally proximate to, the alleged touching of B the subject of the offence of which he was convicted.
Fifth, and unlike the position that exists in relation to A, the appellant did not in his communications with the child persona make any statement to the effect that he wanted to perform on her the type of act that he was alleged to have committed against B. Although he asked the child persona to tell him about her boobs and asked her if she was 'flat or a handful', he did not actually tell the child persona that he wanted to touch her breasts. There is, in my view, a material difference between asking questions directed at enabling the visualisation of a child's breasts and making positive statements about touching a child's breasts.
In light of the matters to which I have referred considered in combination with each other, it is my opinion that the evidence of the appellant's tendency was not significantly probative of the allegation that the appellant had deliberately touched B on the side of her breast; that is, was not, either by itself or having regard to other evidence adduced (including, of course, the appellant's evidence), capable of rationally affecting, directly or indirectly, to a significant extent the assessment of the probability of the appellant having deliberately touched B on her breast in the manner and circumstances alleged. Putting the matter another way, when the matters to which I have referred are considered in combination with each other, I do not consider that the evidence of the tendency, either by itself or having regard to the other evidence adduced at trial, significantly increased the likelihood that B's evidence that the appellant had deliberately touched her breast in the manner and circumstances alleged, was credible, that is, was honest and reliable. The prior conduct was, in my view, simply too different to, and engaged in too long prior to, the alleged conduct the subject of the charge to permit the conclusion that the evidence of the prior conduct rationally affected, to a significant extent, the likelihood that the appellant engaged in the alleged conduct. It follows, in my opinion, that the evidence of the appellant's tendency was not admissible to prove that the appellant had deliberately touched B on her breast as alleged.
Finally, I note that if contrary to the conclusion that I have expressed the indecency element of the charged offences concerning B was a fact in issue, I would, for substantially the same reasons as I have given above in relation to the charges concerning A, conclude that the evidence of the appellant's tendency was admissible to prove that a deliberate touching of the side of B's breast was sexually motivated and consequently indecent.

Decision

As noted above, Gillan DCJ ruled that the propensity evidence was admissible to prove that the alleged dealings the subject of the charges were willed acts rather than incidental and misunderstood touchings. For the reasons I have given I am, with respect, satisfied that her Honour made an error in ruling the evidence admissible on this basis. I would therefore uphold this ground of appeal.

Ground 3(b)

By ground 3(b) (as amended with leave during the hearing of the appeal) the appellant asserts, in substance, that the judge erred in law by directing the jury that the propensity evidence could be used in the same manner as other uncharged acts, further or alternatively by directing the jury that evidence of the appellant's prior convictions had significant probative value in relation to acting or allegedly acting on his sexual attraction to underage girls in the present case by touching them indecently whenever the opportunity arose. Accordingly, the allegation is that the trial judge, by giving the directions that he did, made a wrong decision on a question of law within the meaning of s 30(3)(b) of the CAA.

The judge's direction

The judge gave detailed directions to the jury in relation to the use that they were permitted to make of the propensity evidence in determining if the State had proved the charged offences.[166] The portion of the judge's directions of relevance to the ground of appeal were as follows.[167]
[166] Trial ts 314 ‑ 316.
[167] Trial ts 314 ‑ 315.
The State led this evidence as to the charges the - that the - of the accused and his convictions as demonstrating a tendency or a propensity of the accused, … , to have a sexual interest in young, teenage girls and to be willing to give effect to that tendency or propensity when the opportunity arose.
The facts upon which the State rely include a communication with a person believed to be 13 years of age and speaking to her in relation to sexual matters in an intimate way….
…
… So it was - it's two incidents on 13 November and then 6 December 2014.[168]
[168] The judge's references to '6 December' and to '2014' were incorrect. The two incidents of communication occurred on 13 November 2013 and 6 December 2013.
It involved using effectively electronic communications, a computer, chatting with a person believed to be under the age of 13 about sexual matters. As I've said, the State led this evidence as demonstrating that the accused has a tendency or propensity to have a sexual interest in young, teenage girls and to be willing to give effect to that when the opportunity arose.
It's open for you to consider whether the accused's conduct, the subject of the proven facts, reveals a tendency or propensity to behave sexually towards young, teenage girls. And if you're satisfied that that is the case you'd be entitled to regard that evidence or to regard that evidence when you came to consider the State's allegation against the accused of other sexual offending.
Before you use the evidence in the way suggested by the State, you need to be satisfied beyond reasonable doubt that the accused has a demonstrated a tendency or propensity [sic] and is willing to give effect to that a tendency or propensity [sic].
These are matters for you to consider and it's for you to assess the evidence and decide whether it shows that the accused had a tendency or propensity at the relevant time, that is to say, at the time of this offence in - being committed in late 2016.
You also need to decide whether it assists the State's case on the charges. It's a matter for you to decide whether you accept the suggested tendency or propensity has been proved beyond reasonable doubt.
And if you do make that finding it's also a matter for you to decide whether such finding assists you in determining the guilt of the accused or the guilt or innocence of the accused in relation to the charges on the indictment.
It's for you to determine whether, bearing in mind the date of the other conduct, you are satisfied that it shows that the accused had the tendency or propensity at the time of the charges in the indictment. You determine what significance you attribute to that past conduct.
But you must be cautious about your approach to this evidence. You must remember that evidence of prior conduct is not direct evidence of the offences charged unless you're satisfied on the evidence as a whole proves the guilt of the accused beyond reasonable doubt.
…
At the end of the day to convict the accused you must be satisfied that the State's evidence in relation to each element of the charge for your consideration is truthful, accurate and that it's reliable. The accused cannot be found guilty unless you are satisfied that the act that constitutes the counts on the indictment occurred.
The ultimate question for you in - to decide is whether having regard to all of the evidence, has the offence been proved beyond reasonable doubt? That is to say, the propensity evidence is a matter that you take into account but you must always look at the whole of the evidence and the starting point and finishing point must be that you need to be satisfied beyond reasonable doubt on the evidence that the offence occurred.
After directing the jury in relation to the propensity evidence, the judge moved to directing the jury as to the use that they were permitted to make of the complainants' evidence of uncharged sexual conduct engaged in by the appellant towards them. It is not necessary for me to refer to this part of his Honour's directions in order to deal with the ground of appeal.

The error

As is apparent from the above cited portion of the judge's directions, his Honour directed the jury that the propensity evidence was adduced to prove the guilt of the appellant and that before they could find the appellant guilty they had to be satisfied beyond reasonable doubt that the act that formed the basis of the charge occurred. In other words, the judge's propensity evidence directions invited the jury to use the propensity evidence in deciding if the State had proved that the appellant had deliberately done the acts the subject of the charges. Given that in my view the evidence was inadmissible to prove that the appellant did deliberately do the acts the subject of the charges laid against him, it necessarily follows that in my respectful opinion the judge (despite the ruling by Gillan DCJ that the evidence was admissible for this purpose) made an error of law by directing the jury in this way.

The proviso

The respondent did not contend that if it was found that the judge did make a wrong decision on a question of law as asserted in this ground, that the appeal should nonetheless be dismissed under s 30(4) of the CAA on the basis that no substantial miscarriage of justice occurred. In any event, in my opinion there is no basis upon which it can properly be concluded that the error that I have found was made did not result in a substantial miscarriage of justice. Before the jury could convict the appellant of an offence with which he was charged as having committed against A they had to be satisfied beyond reasonable doubt, on all the evidence before them, of the honesty and reliability of the evidence given by A in relation to the alleged conduct the subject of the charged offence. Similarly, before the jury could convict the appellant of an offence with which he was charged as having committed against B they had to be satisfied beyond reasonable doubt, on all the evidence before them, of the honesty and reliability of the evidence given by B in relation to the alleged conduct the subject of the charged offence. The judge erroneously (I have found) directed the jury, in substance, that the propensity evidence was admissible to prove that the appellant had deliberately touched the relevant complainant in the way alleged by the complainant. There is, in my view, clearly a reasonable possibility that this direction materially affected the jury's assessment of the relevant complainant's evidence; that is, materially affected the jury's assessment of whether the State had proved on all the evidence that the appellant did deliberately touch (deliberately deal with) the relevant complainant in the way alleged by the complainant.[169] In these circumstances there is no room for the application of the proviso.
[169] Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1; Hedgeland v The State of Western Australia [276]; HTD v The State of Western Australia [No 2] [2019] WASCA 39 [96].

Additional points

I am, of course, conscious that my reasoning in dealing with ground 3(a) of the appeal is not on all fours with the reasoning of this court in Jackson (which is the reasoning adopted and applied by Buss P and Mitchell JA in this appeal). This, however, is in the main the inevitable consequence of my view that on an analysis of the elements of the offences with which the appellant was charged the notion of deliberateness relates to the alleged act constituting the dealing, not to the indecency element of the offences. In Jackson this court approached the matter on the basis that proof of the indecency of the conduct alleged to have formed the basis of the charges in that case necessitated proving that the conduct was not only sexually motivated but also deliberate.[170]
[170] See footnote 136.
It is, I think, worth noting in this context that the factual scenario that underpinned the reasoning in Jackson was very different to the facts of the present case. In Jackson, a case in which the admissibility of the propensity evidence fell to be determined in advance of the trial, it was apparently accepted that an issue at trial was likely to be whether, if deliberate touching as alleged occurred, the touching was indecent.[171] This is not such a case.
[171] The State of Western Australia v Jackson [49], [57] ‑ [59].
Further, there is, in my respectful view, a degree of artificiality involved in applying the reasoning in Jackson to the present case and as a consequence concluding that the propensity evidence is not admissible to prove that the appellant actually touched the complainants in the manner alleged but is, if the alleged touching is independently established by other evidence, admissible to prove that the touching was deliberate, sexually motivated and therefore indecent. I say this because if in the present case the jury are satisfied beyond reasonable doubt on all of the evidence, excluding the propensity evidence, that the appellant did deal with the relevant complainant in the alleged manner and circumstances the subject of the charge, it is difficult to see how they could fail to also be satisfied beyond reasonable doubt that the dealing was deliberate. The reality in the present case is that if the jury find on the evidence, other than the propensity evidence, that the appellant did touch the relevant complainant in the manner and circumstances alleged by the complainant, they will necessarily also make a finding on the basis of that evidence that the dealing was deliberate. Accordingly, in the circumstances of the present case, if the reasoning in Jackson is applied with the result that the propensity evidence is held not to be admissible to prove that the actual touching the subject of the charges occurred, the only work that will in reality be left for the evidence to do is to assist in proving that the conduct was sexually motivated, as opposed to deliberate and sexually motivated.

In their reasons Buss P and Mitchell JA express the view that the approach taken by this court in Jackson reflects that adopted by the New South Wales Court of Criminal Appeal in ABR v The Queen.[172] If their Honours are suggesting that ABR supports the proposition that for the offence of indecent dealing the deliberateness of the relevant conduct goes to the issue of indecency, I respectfully take a different view.
[172] ABR v The Queen [2020] NSWCCA 33.
In ABR the applicant was charged with a number of offences of indecent assault. The allegations the subject of the charges were that the applicant touched or rubbed the complainant's vagina on the outside of her underpants or pushed his nose into her vagina.[173] The evidence adduced at trial by the prosecution included evidence of a series of text messages exchanged between the applicant and the complainant's mother immediately after the complainant's first disclosure of the offending to her mother in which the applicant asserted, in substance, that any touching by him was inadvertent and accidental and the result of the complainant asking him to pick her up, or climbing and rolling on him. The tendency (propensity) evidence that was adduced as part of the prosecution case at trial was comprised of evidence that the applicant had searched for, and accessed, child pornography using search terms that included 'full vaginal penetration of pre‑pubescent girl', 'pre‑pubescent hymen conditions' and 'pre‑teen vagina', as well as evidence that the applicant had saved photographs of the vaginas of pre‑pubescent girls.[174] At trial the prosecution adduced the tendency evidence on the basis that it went to prove that the applicant had a tendency to 'have a particular state of mind, namely a sexual interest in underage girls, inter alia and in particular pre‑teenage girls'.[175]
[173] ABR v The Queen [36].
[174] ABR v The Queen [31].
[175] ABR v The Queen [31].
On appeal the applicant contended that the tendency evidence should not have been admitted at his trial because it did not show a 'preparedness to physically act on that state of mind', in particular by carrying out any assaults of the kind charged.[176] In rejecting this contention Meagher JA (Bellew and Lonergan JJ agreeing) said the following:[177]
Counts 1, 2, 3 and 6 involve allegations that the applicant touched or rubbed the complainant's vagina on the outside of her underpants or pushed his nose into her vagina, to which one aspect of the applicant's defence was that any such conduct was innocent and incidental to his picking the complainant up in the course of play. The tendency evidence proved a sexual interest in pre‑pubescent girls, and in particular in the vaginas of pre‑pubescent girls. That state of mind was shown by the 2015 searches undertaken with the Apple Mac laptop to continue to the time of the alleged offending. The text message evidence was capable of supporting a finding that touching and rubbing had occurred, the question being whether it was unintended and innocent or deliberate and conscious. In these circumstances the fact of the applicant's sexual interest made it more likely that what the complainant reported to experience on a number of occasions was deliberate and committed in furtherance of the applicant's interest. For these reasons in my view the tendency evidence had significant probative value and the trial judge did not err in so concluding. (emphasis added)
[176] ABR v The Queen [31].
[177] ABR v The Queen [36].
Thus in ABR, unlike in the present case, the applicant did not deny that the alleged touching the subject of the charges ever occurred. Rather, part of the applicant's defence was that if any such touching occurred, it occurred accidentally in the course of him playing with the complainant. It is in this context that Meagher JA's reference to the text message evidence being capable of supporting a finding that the touching and rubbing had occurred must be read. In any event, what is clear from Meagher JA's reasons is that his Honour considered the tendency evidence to be admissible to prove that the relevant acts were deliberate, as opposed to being admissible to prove that the relevant acts were deliberate and sexually motivated and therefore indecent. That is, his Honour's reasons recognise that for the offence of indecent assault the deliberateness of the alleged conduct is an element that is independent of the indecency element.Having said all of the above, if contrary to my view the notion of deliberateness is something that is to be considered as part of the indecency element of a charge of indecent dealing I would, for the reasons that I have given in deciding that the propensity evidence is not admissible to prove that the appellant did deliberately deal with A and B in the manner and circumstances alleged, conclude that the evidence is not admissible to prove that the dealing was indecent.

Conclusion and orders

I would grant leave to appeal on ground 1 but dismiss the ground of appeal. I would refuse leave to appeal on ground 2. I would grant leave to appeal on grounds 3(a) and 3(b) and allow the appeal on these grounds. The proviso should not be invoked. A re‑trial should be ordered. I would therefore make the following orders:
1.Leave to appeal is granted on ground 1 but the ground is dismissed;
2.Leave to appeal is refused on ground 2;
3.Leave to appeal is granted on grounds 3(a) and 3(b);
4.The appeal is allowed;
5.The convictions on counts 2 and 4 of District Court Perth indictment 36 of 2018 are set aside and a new trial is ordered.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell
29 MAY 2020