R v Bishop

Case [2012] WASC 390

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   R -v- BISHOP [2012] WASC 390

CORAM:   HALL J

HEARD:   2 OCTOBER 2012

DELIVERED          :   22 OCTOBER 2012

FILE NO/S:   INS 85 of 2012

BETWEEN:   THE QUEEN

Prosecution

AND

KENNETH WILLIAM BISHOP
First-named Accused

MARK PENDLETON
Second-named Accused

Catchwords:

Criminal law - Propensity and relationship evidence - s 31A Evidence Act 1906 (WA) - Details of past child sex offences - Whether admissible on charge of conspiracy to commit child sex offences overseas

Legislation:

Evidence Act 1906 (WA), s 31A

Result:

Application to adduce evidence refused

Category:    B

Representation:

Counsel:

Prosecution                   :     Mr B Fiannaca SC

First-named Accused     :     Mr R W Keeley

Second-named Accused :     Mr D J McKenzie

Solicitors:

Prosecution                   :     Director of Public Prosecutions (WA)

First-named Accused     :     Rod Keeley Legal

Second-named Accused :     David McKenzie Legal Pty Ltd

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

Bennett v The State of Western Australia [2012] WASCA 70

Bishop v The Queen [2003] WASCA 79

Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 368

Dair v The State of Western Australia [2008] WASCA 72

Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457

Onekawa v The State of Western Australia [2012] WASCA 105

Roncevic v The State of Western Australia [2010] WASCA 213

HALL J: 

Introduction

  1. The accused are jointly charged on an indictment containing three counts. Each of those counts alleges that between 26 October 2006 and 19 September 2008 they conspired with each other and another person to commit an offence contrary to s 50BA of the Crimes Act 1914 (Cth). The third alleged co‑conspirator, Robert Gordon Cummins, has pleaded guilty to the charges and is to be a witness for the prosecution. For ease of reference I will refer to each of the alleged co‑conspirators by their surname only.

  2. The prosecution case is that the accused conspired to commit offences of engaging in sexual intercourse with children outside Australia, contrary to s 11.5(1) of the Criminal Code (Cth) and s 50BA of the Crimes Act (as at 18 September 2008).  There are three charges to reflect the allegation that the object of the conspiracy was that each of the conspirators would engage in an act of sexual intercourse.  However, in essence there is alleged to have been one conspiracy.

  3. The prosecution has sought leave pursuant to s 31A of the Evidence Act 1906 (WA) to adduce evidence of past conduct by both accused relating to sexual offending against children. The prosecution submits that the evidence should be admissible as it is probative of the existence of a sexual interest in children by each of the accused and a tendency by them to engage in sexual acts with children,…

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Details
AGLC
R v Bishop [2012] WASC 390
Case
[2012] WASC 390
Decision Date

CaseChat Overview and Summary

In the case of R v Bishop, the defendant sought to introduce evidence of past child sex offences to support a charge of conspiracy to commit child sex offences overseas. The decision was made by the Supreme Court of Western Australia. The primary legal issue before the court was whether the evidence of the defendant's past offences was admissible under section 31A of the Evidence Act 1906 (WA). The court had to determine if the evidence had significant probative value and if the probative value outweighed the risk of an unfair trial.

The court examined the criteria set out in section 31A(2) of the Act. Firstly, the court considered whether the evidence had significant probative value, meaning it could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent. The court noted that while the evidence was relevant, it did not reach the threshold of having significant probative value. Secondly, the court assessed the degree of risk of unfairness that would result from the admission of the evidence. The court concluded that the risk of an unfair trial was substantial, given the potential for the jury to be influenced by the evidence of past offences. After weighing the probative value against the risk of unfairness, the court found that fair-minded members of the community would consider the risk of an unfair trial to be too great.

The court ultimately ruled that the evidence of past child sex offences was not admissible, as it did not satisfy the criteria set out in section 31A(2) of the Evidence Act 1906 (WA). Consequently, the application to adduce the evidence was refused.

Orders

Orders of the court

Application to adduce evidence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

'Relationship evidence' is defined in the same subsection as meaning:relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time. Evidence will be admissible under s 31A(2) 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. Both of those tests must be satisfied in order for the propensity or relationship evidence to be admissible. As regards the first test in Dair v The State of Western Australia [2008] WASCA 72 Steytler P said:Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere … relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, 175 - 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: Lockyer (1996) 89 A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 - 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] - [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13]. [61] As regards the second test, Steytler P examined the comparison which s 31A(2)(b) requires in Dair. The points made by his Honour were referred to by Buss JA in Onekawa v The State of Western Australia [2012] WASCA 105 as follows: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) [45].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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