Onekawa v The State of Western Australia
[2012] WASCA 105
•11 MAY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ONEKAWA -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 105
CORAM: MARTIN CJ
PULLIN JA
BUSS JA
HEARD: 23 FEBRUARY 2012
DELIVERED : 11 MAY 2012
FILE NO/S: CACR 99 of 2011
BETWEEN: KELSON GEORGIE HAUWAHO ONEKAWA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :MACKNAY AUX DCJ
File No :IND 1604 of 2010
Catchwords:
Criminal law - Application for an extension of time to appeal against conviction - Appellant charged with one count of sexually penetrating without consent each of two young women while they were asleep - Appellant convicted on one count and acquitted on the other - Propensity evidence - Appellant had previously been convicted on his plea of guilty of unlawfully and indecently assaulting another young woman while she was asleep - Whether propensity evidence was admissible at the appellant's trial - Whether the trial judge failed adequately to direct the jury as to how the propensity evidence could be used by it
Legislation:
Criminal Code (WA), s 325
Criminal Procedure Act 2004 (WA), s 98
Evidence Act 1906 (WA), s 31A
Sentencing Act 1995 (WA), s 32
Result:
Application for an extension of time to appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J A Scholz
Solicitors:
Appellant: Holgate Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Wimbridge v The State of Western Australia [2009] WASCA 196
MARTIN CJ: The appellant's application for an extension of time within which to appeal from his conviction should be dismissed for the reasons given by Buss JA, with which I agree.
PULLIN JA: I agree with Buss JA.
BUSS JA: Between 21 ‑ 25 March 2011, the appellant was tried in the District Court before Macknay AUX DCJ and a jury on two counts in an indictment.
Count 1 alleged that on 7 March 2010, the appellant sexually penetrated K, without her consent, by penetrating her vagina with his fingers, contrary to s 325 of the Criminal Code (WA) (the Code).
Count 2 alleged that, also on 7 March 2010, the appellant sexually penetrated G, without her consent, by penetrating her vagina with his penis, contrary to s 325 of the Code.
On 25 March 2011, the jury acquitted the appellant on count 1 and convicted him on count 2.
On 10 May 2011, the trial judge sentenced the appellant to 3 years 8 months' immediate imprisonment for count 2.
Also, on 10 May 2011, his Honour sentenced the appellant to 12 months' immediate imprisonment for having unlawfully and indecently assaulted T, on 1 January 2011, by touching her vagina with his hand. On 31 January 2011, the appellant had pleaded guilty to this offence in the Magistrates Court. Pursuant to s 32 of the Sentencing Act 1995 (WA), he elected to be sentenced in the District Court for the offence against T.
The trial judge accumulated the sentences. The total effective term of imprisonment was therefore 4 years 8 months. A parole eligibility order was made.
On 18 March 2011, Staude DCJ ruled, after a hearing under s 98 of the Criminal Procedure Act 2004 (WA), that evidence of the appellant's unlawful and indecent assault of T, which the State proposed to adduce at the trial of the appellant on the counts relating to K and G, was admissible under s 31A of the Evidence Act 1906 (WA). Pursuant to this ruling, the State adduced evidence at the trial of the unlawful and indecent assault against T.
The appellant has applied to this court for an extension of time to appeal against his conviction on the count of sexually penetrating G without her consent.
The application for an extension of time
The last date for the appellant to appeal against sentence was 31 May 2011. He did not file his appeal notice until 20 June 2011.
The applicable principles governing the exercise of this court's discretion to extend time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196.
The appellant has filed and served an affidavit of his solicitor, Matthew Alexander Holgate, sworn 20 June 2011, in support of his application.
On 21 August 2011, Mazza J referred the application to the hearing of the appeal.
Whether an extension should be granted depends, in the circumstances of this case, on the merits of the grounds of appeal.
The State's case at trial
The State's case at trial was that the appellant committed the alleged offences against K and G in the early morning of 7 March 2010, after a party at a house in a Perth suburb.
After the party, K went to sleep in a bedroom at an adjoining house. At that time, there was no‑one else in the bedroom. Later, G went to the bedroom where K was sleeping. G lay next to K on the same bed. G also fell asleep.
Later, the appellant, who had also been at the party, went to the bedroom and lay next to G. He also fell asleep. The appellant was not acquainted with either K or G before he entered the bedroom. A State witness, LT, observed him to be asleep. The appellant admitted in a video‑recorded interview with police that there was very limited contact between him and either of the complainants earlier that night.
K awoke and felt the appellant's fingers inside her vagina. She saw G next to her. G's eyes were closed and she appeared to be asleep. K saw the appellant behind G. K swore at the appellant and told him to leave. The appellant said 'sorry' (or words to that effect). K then ran from the bedroom to the house next door where the party had been held. Friends of K found her a short time later. She was distressed. Several people then went to the bedroom where K had been sleeping. They saw the appellant on top of G.
G awoke and realised that the appellant was having sexual intercourse with her. She could not recall whether she pushed him away or whether he voluntarily withdrew. The appellant then walked around the room briefly, and swore, before running away.
There was evidence of recent complaint by both K and G.
G was examined by a medical practitioner at the Sexual Assault Resource Centre. Sperm cells were found in her vagina. Forensic testing established that the sperm cells matched a DNA reference sample taken from the appellant.
K was also examined by the medical practitioner at the Sexual Assault Resource Centre. A number of bruises and lacerations were noted in her genital area. A forensic examination of K's underwear and pants was carried out. The appellant was excluded as a contributor to a mixed DNA profile located on the underwear and pants.
On 9 March 2010, the appellant was interviewed by police. He admitted being at the party. He said that he entered the bedroom of the house first and was watching a movie when two young women, one with black hair (K), and one with blond hair (G), entered the room. The appellant said that K went to sleep. However, G started grabbing his penis. He said that G took his hand and put it into her pants. She then suggested that they have sexual intercourse, and he agreed. The appellant said that G's friends came into the bedroom and, after about 15 to 20 minutes, he left the house because he feared that G's boyfriend might assault him.
The propensity evidence
The State adduced evidence from T about an incident that occurred on 1 January 2011, about nine to 10 months after the events concerning K and G.
On the night of 31 December 2010, T was at a party with a female friend, S. The party was held at a house in a Perth suburb. They were accompanied by T's infant daughter and S's son.
T and her infant daughter, and S and her son, left the party together with another woman at about 12.30 am or 1.00 am on 1 January 2011. They walked to S's house, which was in the next street.
After they arrived at S's house, some men, including the appellant, arrived. The appellant was unknown to T.
It was decided to purchase some food from a McDonald's outlet in the vicinity. The appellant and T went in the appellant's motor vehicle to the McDonald's outlet to buy food for themselves and a number of the other people at S's house. During this journey there was only very brief conversation between the appellant and T. T did not know the appellant's name. She did not ask him.
When the appellant and T returned to S's house with the food, the appellant, T and others sat in the lounge room and ate. While they were eating, the appellant, who was sitting next to T, put his hand on her leg. She told him, 'Do not touch me, I'm trying to eat my food' (ts 284). He removed his hand immediately.
After T finished eating, she went to a bedroom where she had earlier placed her infant daughter to sleep. When T entered the bedroom, her daughter was asleep in a pram.
T then went to sleep in the bedroom. She awoke to find the appellant lying next to her. Her dress had been lifted and the appellant was touching her vagina with his hand. T went to the bathroom and texted a friend on her mobile telephone. The appellant entered the bathroom. He began to stroke her hair and invited her to return to the bed. She ran from the bathroom and went to alert her friend.
Later, the appellant was arrested and charged with unlawful and indecent assault. On 31 January 2011, he pleaded guilty to this offence in the Magistrates Court. A certified copy of the prosecution notice, which verified that the appellant had pleaded guilty, was tendered at the trial.
The appellant's case at trial
The appellant did not give sworn evidence in his own defence at trial. He relied upon statements he had made in the video‑recorded interview with the police.
As to count 1, the appellant denied having penetrated K's vagina with his fingers. He maintained that he did not touch her vagina.
As to count 2, the appellant admitted having had sexual intercourse with G. He maintained that she was not asleep when intercourse occurred, and that she had consented. Indeed, on the appellant's version of events, G was a willing and enthusiastic participant who had initiated the sexual activity.
The grounds of appeal
The appellant relies on two grounds of appeal.
Ground 1 alleges that the evidence as to the appellant's unlawful and indecent assault of T was inadmissible at his trial in that:
(a)the evidence did not have significant probative value; and
(b)the probative value of the evidence, compared to the degree of risk of an unfair trial was not 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.
Ground 2 alleges that the trial judge erred in law in failing adequately to direct the jury as to how the evidence of the unlawful and indecent assault of T could be used by it in considering the State's case against the appellant in relation to K and G.
On 21 August 2011, Mazza J granted leave to appeal on ground 1 and referred the application for leave to appeal on ground 2 to the hearing of the appeal. The grant of leave on ground 1 must be understood as a conditional grant, subject to this court allowing the application for an extension of time to appeal.
Section 31A of the Evidence Act
Section 31A of the Evidence Act confers on the courts power to admit propensity and relationship evidence.
In s 31A(1), 'propensity evidence' is defined by reference to the conduct, character or reputation of the accused or a tendency that the accused has or had. It includes similar fact evidence. Section 31A(1) defines 'relationship evidence' in more specific terms, by reference to the accused's attitude or conduct towards another person, or a class of persons, over a period of time. The categories of 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are not mutually exclusive. There will, no doubt, often be cases where evidence which answers the description of 'relationship evidence' will also fall within the definition of 'propensity evidence'.
The tests for admissibility in s 31A(2)(a) and (b) apply to both 'propensity evidence' and 'relationship evidence', as defined. Neither 'propensity evidence' nor 'relationship evidence' will be admissible under s 31A unless the court considers that:
(a)the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)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.
In Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413, Steytler P examined the comparison which s 31A(2)(b) requires. The following points may be noted from his Honour's examination. First, s 31A(2)(b) requires the court, having already found under s 31A(2)(a) that the evidence has significant probative value, to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question [62]. Secondly, the prejudice to an accused from the admission of propensity evidence may include: an over strong tendency by a jury to believe that the accused is guilty of the charge merely because he or she is a person likely to do the acts in question; a tendency by the jury to condemn the accused, not because he or she is believed to be guilty of the charge, but because he or she has escaped punishment for other offences; and that the jury might become confused or distracted from the charge because it concentrates on resolving whether the accused has actually committed the acts constituted by the propensity evidence [63]. Thirdly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury [64]. Fourthly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues [66]. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances' [66]: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).
The merits of ground 1
Counsel for the appellant accepted (properly, in my opinion) that the evidence relating to the unlawful and indecent assault of T was 'propensity evidence', as defined in s 31A(1) of the Evidence Act. It was submitted, however, that this evidence could not rationally affect, to a significant extent, the assessment of the probability of a relevant fact in issue at the trial.
According to counsel for the appellant, the propensity evidence did not have significant probative value in relation to the counts in the indictment, in that:
(a)it comprised only one incident;
(b)the appellant did not persist with his offending conduct in relation to T and did not have sexual intercourse with her;
(c)the incident with T occurred after the events the subject of counts 1 and 2;
(d)there was nothing particularly striking or distinctive about the appellant's alleged conduct in relation to count 1 or count 2 which, either alone or in combination, would assist the jury to a significant extent in assessing the reliability or credibility of K or G;
(e)there was no system or organisation apparent in the appellant's conduct of the kind often seen in drug dealing cases;
(f)there was not a multiplicity of complaints or complainants of the kind often seen in cases involving sexual offences against children; and
(g)it could not be said that the appellant's account of the events on the night of 7 March 2010 was objectively improbable, notwithstanding his admitted criminal behaviour on 1 January 2011.
Counsel for the appellant asserted in his written submissions:
The evidence of [T] did not lend substantial support to the evidence of [K] and was not relevant to the issue of consent between the appellant and [G] with the result that the propensity evidence was unnecessary. There was no issue of identity in relation to the appellant. Those matters would lead fair minded people to conclude that even allowing for an appropriate warning the public interest in adducing the evidence should not prevail over the potential unfairness inherent in the propensity evidence.
I am satisfied that, contrary to the appellant's submissions, T's evidence, having regard to the evidence adduced from K and G, had significant probative value. I am also satisfied that the probative value of T's 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.
On the State's case, the appellant had a propensity to sexually touch or penetrate young women while they were asleep. On this issue, there was a striking similarity between the evidence of K, G and T. Each of them gave evidence that the appellant had sexually touched or penetrated her while she was asleep.
The objective circumstances in which the appellant allegedly touched K, and the objective circumstances in which he admittedly penetrated G, were facts in issue between the State and the appellant. A critical issue was whether, at the material time, K or G, or both of them, were asleep.
The evidence of T as to the appellant's conduct against her (that is, that the appellant sexually touched her while she was asleep), if accepted by the jury as truthful and reliable, and having regard to the evidence adduced from K and G, was capable of demonstrating a propensity to sexually touch or penetrate young women while they were asleep.
As I have mentioned, before the commencement of the appellant's trial on the counts involving K and G, he had pleaded guilty to unlawfully and indecently assaulting T.
At the trial, defence counsel's cross‑examination of T was very brief. Counsel did not suggest to T that she was not asleep when the appellant unlawfully and indecently assaulted her.
None of the submissions advanced on the appellant's behalf diminishes the significant probative value of T's evidence, as I have explained it. In particular:
(a)It is not essential that there be a multiplicity of incidents, involving numerous complaints and complainants, in order for alleged conduct of an accused to have significant probative value. The absence of numerous complaints and complainants may, depending on the circumstances, merely mean that the probative force is less strong than would be the case if there had been numerous complaints and complainants.
(b)The fact that the appellant did not persist with his offending conduct in relation to T, and did not have sexual intercourse with her, is not to the point. The significance of T's evidence is to be found in the appellant's behaviour in sexually touching her while she was asleep, and the striking similarity between her evidence and the evidence of K and G as to the appellant having sexually touched or penetrated them while they were asleep. The difference in the kind of sexual dealing (that is, touching as distinct from digital or penile penetration) is not a feature which materially diminishes the probative force of T's evidence in relation to the critical issue I have identified.
(c)Evidence of an accused's conduct after the commission of an alleged offence is capable, depending on the circumstances and the nature of the evidence, of being relevant and sufficiently probative to require its admission as propensity evidence.
(d)A period of about nine to 10 months between the alleged offending against K and G on the one hand, and the admitted offending against T on the other, did not, in the particular circumstances of this case, render the appellant's conduct against T irrelevant to or lacking in significant probative force on the critical issue.
(e)The absence of a 'system or organisation', of the kind often seen in drug trafficking or drug dealing offences, did not preclude the admission of T's evidence. The striking and unifying feature in the present case was the appellant's modus operandi of opportunistically and sexually touching or penetrating young women while they were asleep.
(f)The applicable test is not whether it was 'objectively improbable' that the appellant's version of events relating to G was true (notwithstanding his admitted offending against T), but whether T's evidence could rationally affect the assessment of the probability of a relevant fact in issue to a significant extent.
I have no doubt that fair‑minded people would think that the public interest in adducing T's evidence must have priority over the risk of an unfair trial. The degree of risk of an unfair trial, compared to the probative value of T's evidence, was modest. Any risk of impermissible prejudice to the appellant and of an unfair trial was able to be guarded against satisfactorily by directions from the trial judge.
Ground 1 fails.
The merits of ground 2
Counsel for the appellant submitted that the trial judge failed to give the jury 'a careful direction that clearly set out the alleged probative value of the evidence coupled with an explanation as to how the propensity evidence might be used' and, as a result, a miscarriage of justice occurred.
The trial judge directed the jury, in his summing up, that if it was satisfied that it could rely on T's evidence, then:
[W]hen you came to consider the case involving [K], it would be open to you to consider whether the accused person's conduct in relation to [T], revealed a propensity to sexually assault sleeping females, and if you were satisfied that that was the case, you would be entitled to have regard to that evidence when you came to consider the State's allegations against the accused person in relation to the charge involving [K].
And similarly, in the event that you were satisfied as to such a propensity arising from the evidence of [T], you would be entitled to consider whether that made it more likely that the accused person penetrated [G's] vagina with his penis, in circumstances where he knew she was asleep (ts 406). (emphasis added)
His Honour then gave the jury this instruction in relation to the count involving G:
[T's] evidence and the evidence of [K], if you were satisfied it was true, could only be considered when you look at what the accused person did or didn't do. In other words, the evidence of a propensity, would not be relevant to the question whether [G] consented to having sex, it would be only relevant to the question whether [G] was asleep at the time that the accused person is said to have sexually penetrated her.
Now, you must be satisfied, as I've said in any case, members of the jury, that the evidence referred to, does establish a propensity. The accused person of course denies that he committed either of the charges alleged here.
Bear in mind that it does not follow that because a person did something on one occasion, that he would ‑ or do it again. Even if a tendency, a propensity is revealed, you must also of course bear in mind that people do not necessarily act in accordance with their inclinations or tendencies, at every opportunity (ts 406). (emphasis added)
Finally, the trial judge gave these additional directions as to limitations on the use which the jury could make of any propensity evidence (notably, T's evidence):
Now, if the evidence in any of the cases that I have referred to, has the effect contended for it by the prosecution, members of the jury, there are still restrictions on the use of that evidence.
Firstly, you cannot use the evidence of a proven charge or the other proven conduct, if you found there was other proven conduct in relation to [T], to make up for any deficiencies you found in the evidence required to prove each element of the charge under consideration.
Second, if you were satisfied the accused person had committed an offence, you could not reason that it followed that the State's other evidence ought be accepted as reliable, or that any other charge has approved [sic] thereby.
Thirdly, if you are satisfied the accused person has committed an offence, you cannot simply say that it follows that he committed some other offence or offences, and if you do, that would be very wrong of course.
And fourthly, at the end of the day, to convict the accused person of a charge, you must be satisfied the State's evidence as to each element of that charge is truthful and accurate, that is, reliable, and that the accused person's denial is untruthful, and you were satisfied [it] must be rejected.
Again, members of the jury, just by way of a final caution, to proceed from being satisfied that the accused person committed another offence, including one in respect of which he'd been convicted, directly to guilt of an offence here, would not only be wrong in law and contrary to your oath or affirmation, but it would be dangerous (ts 407).
I am satisfied that, contrary to the appellant's submissions, there was no inadequacy in the trial judge's directions. His Honour properly directed the jury as to how T's evidence about the appellant's propensity should be approached, and could be used, in considering the State's case against the appellant in relation to K and G.
Defence counsel did not complain to his Honour about any aspect of the summing up in relation to T's evidence. No additional direction or redirection was sought concerning the propensity evidence.
The decision of the jury to acquit the appellant on count 1 (which concerned K) demonstrates that it separately evaluated the evidence against him on each count. The acquittal indicates that the jury did not misuse the propensity evidence; for example, by relying on prejudice or illogical reasoning to overcome any deficiencies in the evidence as a whole.
Ground 2 fails.
Conclusion
I would refuse to grant an extension of time to appeal. Neither of the grounds of appeal has any merit. The appellant's application should be dismissed.
10
4
4