NDY v The State of Western Australia

NDY was convicted after trial on multiple counts of sexual offences against two complainants and appeals against his conviction and sentence. The appeal against conviction contests the admissibility of evidence relating to the appellant's conduct towards a third complainant, and the appeal against sentence contests the adequacy of the sentence imposed. The court considered the admissibility of evidence that revealed a tendency to act on a sexual interest in post-pubescent girls as propensity evidence. This evidence was relevant to establishing a connection between the appellant's conduct towards the two complainants in the present case. The court found that the evidence had significant probative value because it established a distinct and specific similarity in the appellant's conduct towards both the complainants in the present case and the third complainant. The court concluded that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue. The court found that the evidence had probative value because it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue. The court further found that the probative value of the evidence compared to the degree of risk of an unfair trial was such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. The appeal against sentence was dismissed because the court found that the individual sentences were not manifestly inadequate and that the total effective sentence did not infringe the first limb of the totality principle.

The appeal against conviction was upheld because the court found that the trial judge erred in concluding that the evidence of the third complainant had significant probative value. The court found that the trial judge had failed to give proper consideration to the principles relevant to whether propensity evidence has significant probative value and had failed to properly consider the probative value of the evidence in relation to the facts in issue. The court found that the evidence of the third complainant did not have significant probative value and that the trial judge's error was likely to have affected the outcome of the trial. The appeal against conviction was therefore upheld and the matter was remitted to the District Court for retrial.