The State of Western Australia v ATS
[2013] WADC 166
•1 NOVEMBER 2013
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ATS [2013] WADC 166
CORAM: GOETZE DCJ
HEARD: 23 OCTOBER 2013
DELIVERED : 1 NOVEMBER 2013
FILE NO/S: IND 761 of 2013
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ATS
Respondent
Catchwords:
Application to lead propensity evidence pursuant to s 31A of the Evidence Act - Alleged offences of indecent dealing - Alleged prior uncharged conduct of indecent dealing - Turns on own facts
Legislation:
Evidence Act 1906
Result:
Application allowed
Representation:
Counsel:
Applicant: Mr N R Cogin
Respondent: Mr S W O'Sullivan
Solicitors:
Applicant: State Director of Public Prosecutions
Respondent: Ian Farquhar
Case(s) referred to in judgment(s):
APC v The State of Western Australia [2012] WASCA 159
Bennett v The State of Western Australia [2012] WASCA 7
Buiks v The State of Western Australia [2008] WASCA 194
Dair v The State of Western Australia [2008] WASCA 72
Donaldson v The State of Western Australia [2005] WASCA 196
HML v The Queen [2008] HCA 16
Mansell v The State of Western Australia [2009] WASCA 140
Osborne v The State of Western Australia [2007] WASCA 183
R v Kovacs (2008) 192 A Crim R 345
R v S [2002] QCA 167
GOETZE DCJ:
Introduction
By an indictment dated 24 July 2013, ATS is charged with five offences, each alleging that on 11 January 2013 at Calista, he indecently dealt with MLS, a child of or over the age of 13 years and under the age of 16 years. The particulars of the offences allege two counts of touching the breasts of MLS, one count of showing her pornographic material, one count of touching her vagina and one count of touching her bottom.
The State of Western Australia has made an application for an order that, at trial, propensity evidence be admitted pursuant to s 31A of the Evidence Act 1906.
The trial of this matter was listed for hearing on 4 November 2013 however, it has now been adjourned.
The application
The State of Western Australia has applied to lead proposed propensity evidence concerning ATS's alleged behaviour constituted by his alleged indecent dealings with JMH, as contained in a witness statement from JMH dated 16 September 2013.
ATS has never been charged with the alleged indecent dealings with JMH who, at the material time, was a child of or over the age of 13 years and under the age of 16 years.
Elements of the alleged offences
In order to establish guilt on the present charges, it will be necessary for the State to prove beyond reasonable doubt each of the following elements of the offences:
1.That the offender was the accused.
2.That he dealt with the complainant.
3.That the dealing was indecent.
4.That the complainant was a child of or over the age of 13 years and under the age of 16 years.
The State case
The State case alleged against ATS can be summarised as follows:
1.He was at his father's home, together with his brother and his brother's son and his daughter, being the present complainant.
2.The complainant became involved in a discussion with her father and ATS over her relationship with her boyfriend. A short time after this discussion, the complainant's father left the room.
3.The complainant continued discussing the issue with ATS. The complainant's father re‑entered the room and then left again.
4.After the complainant's father had left, ATS asked her to give him a hug. As she did so, the accused touched her breasts and began twisting her nipples. He said 'these are only for me, not for anyone else'. The complainant's 11‑year‑old brother was in the room at the time and he told ATS to stop.
5.After this, ATS asked the complainant to go outside with him to his motor vehicle from which he produced a laptop computer and blue thumb drive. He showed the complainant pornographic material contained within the thumb drive.
6.While showing pornographic material to the complainant, ATS the accused placed his hand on the outside of her vaginal area and began rubbing her vagina. The complainant pulled his hand away and told him to stop.
7.Later, when ATS was leaving the house, he pulled the complainant towards him to give her another hug and as he did so, he grabbed her right buttock cheek with his right hand and her right breast using his left hand.
The proposed propensity evidence
In summary, JMH alleges that:
1.When she was 13 years of age, her parents were friendly with ATS.
2.On one occasion, when only JMH was at her home because the rest of her family had gone to watch cricket, ATS attended at that home with his 5‑year‑old son.
3.ATS invited JMH to a party three houses away. Later, JMH attended that party.
4.ATS 'was getting a bit drunk' at this party. JMH lit a cigarette for him. ATS said words to the effect of 'you know your parents don't want you to smoke' and shortly thereafter, he gave her some cigarettes.
ATS asked JMH if she wanted a drink of alcohol, and provided her with a mixed drink. JMH began to feel drunk and returned home.
5.Shortly thereafter, ATS attended at JMH's home. ATS and JMH both had a cigarette. ATS's son fell asleep on the lounge.
6.ATS and JMH engaged in 'a bit of sleazy conversation'. JMH said this concerned 'how developed I was and also how pretty I was'.
7.On three occasions, ATS asked JMH for a kiss. She said 'no' on each occasion. He then asked 'not even a pash just a peck?' Again this was rejected. Then ATS kissed JMH on the lips and she pulled away immediately.
8.While still holding her hand, ATS pulled her right hand towards his mouth and kissed her fingers. He held JMH's hand to her face, stuck out his tongue and tried to suck on her finger. JMH pulled away from him. ATS followed.
9.ATS splashed some water over JMH's front. She slipped over and while sitting on the ground, ATS poured some more water over her, wetting her hair and the boob tube she was wearing. He asked if she wanted him to take off her boob tube, to which she replied 'no'.
10.JMH complained to her mother about one month later.
The proposed propensity evidence will need to be led from JMH either in court or from the remote room.
The State submitted that its purpose in leading the proposed propensity evidence at trial will be for the purpose of asking the jury to find that the proposed propensity evidence is true and that it shows the accused has an abnormal sexual attraction to well‑developed young girls.
The State's submission as to relevance is that the suggested abnormal sexual interest in young girls will be circumstantial evidence against the accused supporting the direct evidence of the complainant as to the alleged indecent dealings.
The defence case
The written defence submissions deny the offending, save to say that the accused 'showed the complainant a short excerpt of what can be classed as adult pornography for a legitimate purpose'. ATS also denies the alleged misconduct with JMH.
It was submitted by Mr S W O'Sullivan, as counsel for ATS, that the proposed evidence is neither propensity nor relationship evidence and it would simply be evidence prejudicial to ATS at his trial.
The defence submission was that the alleged offending in the indictment is totally dissimilar to the alleged offending being the subject of the proof of evidence from JMH. The only similarity lies in the ages of the complainant and JMH.
The defence is also that at least part of the incident the subject of the present indictment is said to have occurred with the complainant's father and brother in the house and that her brother was awake and present in the room where the alleged offending is said to have occurred. It involves touching of the body outside the clothing.
However, the JMH incident contains no such touching and the alleged activity, if it occurred, is totally consistent with the non‑sexually motivated actions of a man significantly affected by alcohol.
Further, the two incidents are some four and a half years apart.
It was also submitted that the evidence, if admitted, would multiply the issues and cause confusion for the jury. To require a jury to determine the truth or otherwise of JMH's complaints and to require the jury to go further to consider an alleged abnormal sexual interest in 13‑year‑old girls will prove too much of a distraction for the jury, as to which see Steytler P in Dair v The State of Western Australia [2008] WASCA 72 [62] – [67].
Further, it was submitted that the proposed evidence, if probative, is not significantly so and the fair‑minded public interest test would not be met.
Section 31A Evidence Act 1906
Section 31A of the Evidence Act provides:
(1)In this section -
propensity evidence means -
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
...
(2)Propensity evidence or relationship evidence 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.
…
Is the proposed evidence admissible?
The first requirement of the evidence proposed to be led by the State is relevance, as to which, Roberts‑Smith JA said in Donaldson v The State of Western Australia [2005] WASCA 196 [118]:
The threshold test for admissibility of any evidence is relevance (Smith v The Queen (2001) 206 CLR 650, [6]). Evidence is relevant if it tends to prove a fact in issue or a fact relevant to a fact in issue. The probative value of relevant evidence is the extent of the tendency of the evidence to do that.
The proposed evidence must be probative. It must be both relevant and material such that if accepted, it may assist in proof of the offences charged or some other particular element of the offences. Its capacity to logically contribute to the proof of the offences or an element thereof is what makes it probative – per E M Heenan AJA in Dair at [260].
Further, in Donaldson Roberts-Smith JA also said [118]:
Other than similar fact evidence, propensity evidence as defined in s 31A is clearly now admissible precisely because it shows the propensity of an accused to commit offences of the kind charged (in the sense that he or she is a person who has committed other offences).
It is also well established that propensity evidence can be used to negate possible defences, as to which see, for example, Bennett v The State of Western Australia [2012] WASCA 70 [35].
Discussion
The following observations can be made. In each of the charges being the subject of the indictment and the JMH incident, ATS had a relationship with the family of the complainant. In the matter of the indictment, the complainant was his niece. In the JMH matter, he was friendly with her parents and well known to the complainant. In each matter, ATS had allegedly been drinking. The girls were the same age.
In the indicted matter, ATS admittedly showed a pornographic video to the complainant, but he says that that was for a legitimate purpose yet to be disclosed. There is alleged touching, which can only be described as of a sexual nature, such touching being of the breasts, bottom and vagina. In the JMH incident, there was 'sleazy conversation' about JMH's physical characteristics, followed by the request for a kiss, an actual kiss and an attempt to suck her finger. He then splashed water over her front. He asked if he could remove her boob tube. These matters can also be viewed as conduct being sexual in nature: Osborne v The State of Western Australia [2007] WASCA 183 [18].
There are not large distinctions in the sense outlined by Buss JA in Buiks v The State of Western Australia [2008] WASCA 194 [52] – [59] between the evidence concerning in the indicted matter compared to the JMH incident. In Buiks, the peripheral involvement of the alleged offender in the propensity evidence was not significantly probative of his alleged involvement in the offending described in the indictment. In this case however, there is alleged sexual conduct in both incidents, if proved, between ATS as a 33‑year‑old man in the JMH incident and as a 38‑year‑old man in the indicted matter and both complainants are reportedly well‑developed 13‑year‑old girls from families with whom he had a familial or close relationship.
The fact that the two incidents are some four and a half years apart does not alone suggest that any prior offending is too remote in time by reason that ATS was 33 and 38 years of age upon the respective occasions and was therefore an adult on each of those respective occasions.
It is not suggested that there has been any concoction between the two girls.
The alleged JMH incident is 'other evidence of the conduct of the accused person'. Further, if accepted, it is capable of amounting to 'evidence of a tendency that the accused person has or had'.
The proposed propensity evidence suggested by the State is ATS's alleged tendency to be attracted to, and give effect to his attraction to, well‑developed young girls. If proved, then it is logically capable of contributing to the proof of the offences being the subject of the indictment. It is therefore relevant to a fact in issue in the indictment, namely whether ATS indecently dealt with his niece as alleged. It is probative of the issue as to whether the alleged offending occurred or not and it also may assist with respect to any requirement to negate an innocent touching.
It follows that the facts behind the JMH incident amount to propensity evidence as defined in s 31A.
Does the proposed evidence have significant probative value?
In Mansell v The State of Western Australia [2009] WASCA 140 [37], Miller JA said that:
For evidence to have significant probative value, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. This was made clear by Steytler P in Dair, at [60] - [61], where his Honour said:
'The evidence in question must obviously be relevant before it can be admitted into evidence. That is to say, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands (2002) 76 ALJR 1024 at [2] per Gleeson CJ; Phillips v The Queen (2006) 225 CLR 303 at [50]. It could otherwise have no probative value, let alone "significant" probative value.
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 at 175 - 176. Heydon (at [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: R v Lockyer (1996) 89 A Crim R 457 at 459; R v Lock (1997) 91 A Crim R 356 at 360 - 361; R v Fordham (1997) 98 A Crim R 359 at 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 at [77] - [82]; Western Australia v Osborne [2007] WASCA 183 at [13].'
In APC v The State of Western Australia [2012] WASCA 159, Mazza JA said [88]:
By the inclusion of the adjective 'significant', Parliament has clearly intended that the evidence sought to be adduced must be more than merely relevant. In Dair [61], Steytler P noted this and referred to Heydon, J D, Cross on Evidence (7th Aust ed, 2004) par 21245, which suggested that 'significant' means 'important' or 'of consequence'. This coincides with the way the word 'significant' was treated by Wheeler JA in The State of Western Australia v Osborne [2007] WASCA 183 [13]. Whether evidence is significant depends upon the fact in issue and the importance that the evidence in question has to the proof of that fact.
Further, Pulllin JA said [12]:
… the legislature has put probative propensity evidence into a special category. It will not be admitted merely because it has probative value, it must be more than that. It must have 'significant' probative value. As Mazza JA points out in his reasons, the word 'significant' means 'important' or 'of consequence'. However, even that is not enough. McHugh J in Pfennig (528) explained why this is so:
'Plainly, [such evidence] cannot be admitted merely because it has probative or even strong probative value. The risk of an unfair trial through the use of propensity reasoning is too great to allow such a low threshold of admissibility. Consequently ... as a matter of law and not discretion the probative value of the evidence must outweigh or transcend its prejudicial effect.'
In resolving the outcome of this issue of the significance of the proposed evidence, it is necessary to bear in mind the nature of the likely sole issue at trial ie, whether or not the alleged touching occurred. If it did, then it is unlikely to be an issue that such touching is indecent. Further, it is unlikely that the age of the complainant will be in issue. It is to be remembered, that, the showing of the pornographic material is admitted.
ATS's alleged offending behaviour towards JMH shows a mode of behaviour which corresponds to a certain degree with the offending alleged against him in the present indictment.
The facts behind the JMH incident and the suggested tendency, if proved, may aid the jury in determining whether, in the present case, the State has proved beyond reasonable doubt the relevant touching, including to negate touching by accident. Without that evidence concerning his alleged prior misconduct being led at the forthcoming trial, the jury will be operating in a vacuum when determining its verdicts. A properly instructed jury should have the benefit of evidence going to ATS's alleged behaviour with JMH and the alleged propensity arising therefrom.
The proposed propensity evidence has significant probative value for the reasons outlined above.
It is for the jury to determine whether it is satisfied that the alleged misconduct with JMH is proved and if so, whether that evidence proves the suggested tendency advocated for by the State or not.
It is also to be remembered, that, following HML v The Queen [2008] HCA 16, the jury may consider that it is not necessary for it to engage in determining whether or not the JMH incident occurred and whether the suggested tendency has been proved as the State seeks to do. The jury may be satisfied on the direct evidence of the complainant, without more, in the indicted matter.
Prejudice
A fair‑minded jury would require to know of the proposed evidence. There is a risk of prejudice, but it is not a significant one. Any possible prejudice can be cured by direction.
In these circumstances, I am of the view that the probative value of the proposed propensity evidence, compared to the risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
Other matters
Mr O'Sullivan also contended that the jury might be distracted from its principal task by concentrating on resolving whether the accused committed the matters alleged in the JMH incident and whether the State has proved the suggested tendency.
It is reasonable to believe that the jury should not be distracted from its principal task of resolving the issues on the indictment by also being called upon to resolve the JMH issues, including the suggested propensity. The facts relating to the indictable matter and the JMH incident are both clearly separate matters and it is unlikely that the jury will confuse the factual content of those matters one with the other and it ought to be able to resolve those matters with reasonable efficiency.
Further, Mr O'Sullivan was concerned that if the JMH matters are proved together with the suggested tendency, then a jury might simply proceed to convict ATS of the matters set forth in the indictment. However, the trial judge will no doubt direct the jury as to how it should properly consider and deal with the proposed propensity evidence. It can be reasonably expected that the jury will follow such direction, so that the jury will not place too much weight upon the proposed propensity evidence in the sense suggested by Mr O'Sullivan.
Recent complaint in the JMH matter
During the course of submissions, Mr O'Sullivan referred to a statement provided by JMH's mother regarding the complaint made by JMH to her mother regarding ATS's alleged misconduct with her. That complaint was to the effect that ATS had only tried to kiss her and that whilst she was in the shower and he was outside the house, he was squirting her through the bathroom window with a cold hose. There are obvious differences in the factual versions told by JMH in her statement and to her mother. There was some discussion during the course of submissions as to whether the recent complaint evidence from JMH's mother would be admissible at trial.
In R v S [2002] QCA 167 [19], McPherson JA said that such recent complaint evidence would not be admissible because the acts the subject of that complaint were not acts charged against the accused. See also R v Kovacs (2008) 192 A Crim R 345.
Conclusion
The significant probative force of the proposed propensity evidence compels its admission into evidence and notwithstanding any prejudicial effect of that evidence, it is just to admit it. The trial judge can direct the jury in respect of any prejudice on the facts as they emerge at trial.
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