The State of Western Australia v Brown
[2020] WASC 300
•21 AUGUST 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BROWN [2020] WASC 300
CORAM: DERRICK J
HEARD: 3 AUGUST 2020
DELIVERED : 21 AUGUST 2020
FILE NO/S: INS 10 of 2020
INS 27 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
ALWYN WAYNE BROWN
Accused
Catchwords:
Criminal law - Contraventions of requirements of supervision order contrary to s 40A(1) of the Dangerous Sexual Offenders Act 2006 (WA) - Alleged contravention of supervision order contrary to s 40A(1) of the Dangerous Sexual Offenders Act 2006 (WA) - Application under s 31A of the Evidence Act 1906 (WA) to adduce evidence of prior convictions at trial of issues relating to contraventions of requirements of supervision order - Application under s 31A of the Evidence Act 1906 (WA) to adduce evidence of prior convictions at trial of charge of contravening supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Evidence Act 1906 (WA)
Result:
Applications allowed in part
Category: B
Representation:
Counsel:
| Prosecution | : | Mr B D Meertens |
| Accused | : | Mr A G Elliott |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61
Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405
Director of Public Prosecutions for Western Australia v Brown [No 5] [2012] WASC 276
Director of Public Prosecutions for Western Australia v Brown [No 6] [2013] WASC 148
Director of Public Prosecutions for Western Australia v Brown [No 8] [2015] WASC 390
DKA v The State of Western Australia [2017] WASCA 44
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338
IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
MNA v The State of Western Australia [2020] WASCA 84
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
The State of Western Australia v Brown [No 9] [2017] WASC 355
The State of Western Australia v Jackson [2019] WASCA 118
DERRICK J:
Introduction
The State has made two applications under s 31A of the Evidence Act 1906 (WA) (Act), one dated 26 May 2020 (the first application) and the other dated 22 July 2020 (the second application), to adduce evidence of prior convictions of the accused at hearings dealing with alleged and admitted contraventions by the accused of the conditions of a supervision order made in relation to him under the provisions of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The hearing of the first application and the second application (the applications) took place before me on 3 August 2020.
Background to the hearing of the applications
The background to the hearing of the applications is as follows.
On 7 December 2017 Corboy J made a 7‑year supervision order in relation to the accused pursuant to s 17(1)(b) of the DSO Act (Supervision Order).[1]
[1] The State of Western Australia v Brown [No 9] [2017] WASC 355.
Condition 23 of the Supervision Order provides that the accused is not to commit any sexual offence as defined in s 36A of the Act.
Condition 42 of the Supervision Order provides that the accused is not to have contact with any child under the age of 16 years unless the contact is authorised in advance by a Community Corrections Officer (CCO) and such contact is supervised at all times by an adult approved in advance by a CCO.
Condition 44 of the Supervision Order provides that the accused give details of any contact with a child under the age of 16 years to a CCO and to the police on the next occasion that he reports to that person or agency.
In January 2020 the accused was charged in the Magistrates Court with three offences of contravening, without reasonable excuse, a requirement of the Supervision Order (condition 42) by having contact with a child under the age of 16 without the authorisation of his CCO contrary to s 40A(1) of the DSO Act (PE 4006/2020, PE 5193/2020 and PE 5194/2020), and two offences of contravening, without reasonable excuse, a requirement of the Supervision Order (condition 44) by failing to advise his CCO of contact that he had had with children under the age of 16 on the next occasion that he reported to his CCO contrary to s 40A(1) of the DSO Act (PE 4007/2020 and PE 5195/2020). On 16 March 2020 the Magistrates Court transferred the five charges to this court to be dealt with. The charges were transferred pursuant to s 40B(4) of the DSO Act.
On 27 March 2020 the State filed an undated Amended Statement of Material Facts for the five charges.
On or about 3 April 2020 the accused's former counsel filed an 'Outline of Facts in Issue' dated 3 April 2020 (Outline of Facts in Issue).
On 3 April 2020 the accused appeared in this court. At the commencement of the hearing the accused's former counsel informed the court that pleas of guilty would be entered to the five charges of contravening the Supervision Order, but that the facts alleged by the State in the Amended Statement of Material Facts as identified in the Outline of Facts in Issue remained in dispute and that a trial of issues would be required. The accused was then arraigned on the five charges. He pleaded guilty to, and was convicted of, each of the five charged offences (the contravention offences).[2]
[2] By an application dated 28 January 2020 the State has commenced proceedings against the accused under pt 2 div 4 of the DSO Act in respect of the conduct the subject of the contravention offences.
On 25 May 2020 the accused was charged with one further offence of contravening, without reasonable excuse, a requirement of the Supervision Order (condition 23) contrary to s 40A(1) of the DSO Act (PE 25222/2020) (the contravention charge). On 29 May 2020 the Magistrates Court, acting pursuant to s 40B(4) of the DSO Act, transferred the contravention charge to this court to be dealt with.
On 26 May 2020 the State filed the first application.
On 3 June 2020 the State filed a further undated Amended Statement of Material Facts (the Statement of Facts). The Statement of Facts contained not only the alleged facts of the contravention offences, but also the alleged facts of the contravention charge.
On 12 June 2020 the accused again appeared in this court. During the hearing the accused's counsel informed the court that the accused would be pleading not guilty to the contravention charge.
Following the hearing on 12 June 2020 directions were made as follows:
1.The evidence of the two complainants the subject of the contravention offences and the contravention charge is to be taken and recorded at a special hearing conducted pursuant to s 106R of the Act on 22 and 23 July 2020;
2.The hearing of the first application is listed for 3 August 2020;
3.The accused's trial on the contravention charge (the contravention charge trial) is listed for 24 and 25 September 2020; and
4.The trial of issues relating to the contravention offences (the trial of issues) is listed for 7 and 8 October 2020.
On 22 July 2020 I presided over the special hearing at which the evidence of one of the complainants was taken and recorded. For reasons that I do not need to go into, at the hearing on 22 July 2020 I adjourned the special hearing for the taking and recording of the evidence of the second complainant to 30 July 2020.
On 23 July 2020 the State filed the second application. On the same date, and for reasons that are apparent from what I say below in relation to the orders sought by the applications, I made an administrative direction that the second application was to be heard on 3 August 2020 together with the first application.
On 30 July 2020 I presided over the special hearing at which the evidence of the second complainant was taken and recorded.
The applications
By the first application the State seeks an order permitting it to adduce at the trial of issues as propensity evidence and relationship evidence, evidence of the fact of, and the factual basis for, the accused's convictions for the following offences (the prior offences):
1.One offence of child stealing and one offence of attempted sexual penetration of a child under 13 years, of which the accused was convicted on his pleas of guilty in the District Court at Broome on 6 October 1999 (indictment BRO 57 of 1999);
2.One offence of deprivation of liberty and one offence of sexual penetration of a child under 13 years, of which the accused was convicted on his pleas of guilty on 11 June 2004 in the District Court at Perth (indictment 1130 of 2004); and
3.Two offences of deprivation of liberty and two offences of indecently dealing with a child under 13 years, of which the accused was convicted on 26 November 2007 on his pleas of guilty in the District Court at Perth (indictment 750 of 2007).[3]
[3] By their terms the applications seek leave to adduce the specified evidence as propensity evidence only. However, at the beginning of the hearing of the applications counsel for the State made clear that the State's position is that the evidence sought to be adduced is also relationship evidence within the meaning of s 31A(1) of the Act: ts 151, 3 August 2020. That this was the State's position was apparent from the State's written Outline of Submissions dated 29 July 2020 filed in advance of the hearing of the applications (State's Submissions). Accordingly, counsel's clarification and confirmation of the State's position did not prejudice the accused.
By the second application, the State seeks an order permitting it to adduce at the contravention charge trial as propensity evidence and relationship evidence, evidence of the fact of, and the factual basis for, the convictions of the accused for the prior offences.
During the hearing of the applications counsel for the State made clear that so far as the first application is concerned the State is not seeking to adduce the evidence of the fact of, and the factual basis for, the accused's convictions for the prior offences in relation to the two contravention offences constituted by the accused's failure to advise of his contact with children under the age of 16 (PE 4007/2020 and PE 5195/2020).[4]
[4] ts 152 ‑ 153, 3 August 2020.
The alleged facts of the contravention offences and the contravention charge
The alleged facts of the contravention offences and the contravention charge as set out in the Statement of Facts are as follows:
1.…
…
PE 4006/2020
7.At about 5.40 pm on Saturday 18 January 2020, the accused was in his red motor vehicle, registration number 1DLF 005, near Belmont Forum Shopping Centre, Belmont. Two 10 year old girls were walking past his vehicle towards a bus stop when the accused engaged them in conversation. The accused cleared items off the back passenger seat of his vehicle, asked the girls if they wanted money, and told them to get in his car. The girls did not get in his car. At the conclusion of the conversation the accused drove away in his vehicle and the girls continued to walk to a nearby bus stop.
8.The accused drove his vehicle in the car park in the vicinity of the shopping centre. Whilst the girls were seated at the bus stop, the accused drove his vehicle past them at the bus stop on more than one occasion.
9.In his contact with the children, the accused had a sexual intention.
10.At no time was the accused authorised by his CCO to talk to the children.
PE 5193/2020
11.The accused drove his vehicle to a shopping complex in nearby Rivervale and parked his car in the car park close to an IGA store. He entered the IGA store and bought a tub of margarine, then returned to his vehicle and remained in his vehicle for several minutes.
12.At about 6.10 pm on Saturday 18 January 2020, the same two girls arrived at the Rivervale shopping complex on their bus, exited the bus, and began walking towards a nearby recreation park. As they crossed the road, the accused called out to them from his car and the girls stopped, looked in the direction of the accused and walked a few steps towards his car before turning away and continuing to walk towards the recreation park.
13.Shortly after, the accused drove his car from the car park outside IGA to a car bay next to the park where the two girls had walked to and engaged in another conversation with the girls. At the conclusion of the conversation, the accused drove his vehicle away from the car bay, however he hovered in the area where the girls were, and spoke to them on at least two more occasions after the girls moved towards the IGA complex.
14.In one of those conversations, the accused again asked the children to get in the car with him, suggesting that they show him where a petrol station was. He again offered them money. The children did not get in the vehicle.
15.At one stage, the accused gave one of the children a $50 note and asked her to get change for him. Whilst that child (child 1) did this in IGA (confirmed on CCTV), the accused spoke to the other child (child 2) in a parking spot close to the IGA. Child 1 returned to the accused's vehicle.
16.At about 6.42 pm, the two girls were walking in a laneway near IGA when the accused drove his vehicle towards them. CCTV footage captured the accused driving his vehicle slowly down the laneway and engaging in conversation with the children as they were walking. At one stage, the accused was engaging in conversation with child 2 through his car window. After driving slowly up the laneway, the accused drove his vehicle away.
17.In his contact with the children, the accused had a sexual intention.
18.At no time was the accused authorised by his CCO to speak with the children.
PE 5194/2020
19.At about 6.45 pm on the same day, child 2 walked back down the laneway on her own. At about 6.51 pm, the accused entered the laneway in his vehicle from the opposite direction and parked in an isolated vacant area to the side, out of CCTV vision. Child 2 made her way down the laneway and spoke to the accused at his car in the vacant area for approximately 3 minutes, while child 1 waited closer to the IGA supermarket.
20.In his contact with the child, the accused had a sexual intention.
21.At no time was the accused authorised by his CCO to speak with the children.
PE 25222/2020
22.At about 6.51 pm on 18 January 2020, child 2, aged 10, was with the accused in the vacant area at Jupp Lane in Rivervale. The accused asked the child if she wanted money and asked if she wanted to jump in his car. He told the child that if she wanted to jump in his car, she would have to do something. The accused tried to give the child $20.
23.The accused exposed his penis in the presence of the child whilst sitting in his car. The child saw his penis. The accused had a knife in his hand, and at one stage made a motion drawing it across his throat.
24.The child ran from the location back up the laneway to her friend. The accused departed in the area in his vehicle.
25.In his contact with the child, the accused had a sexual intention.
26.…
Progression of original charges (PE 4006, 4007, 5193, 5194, 5195 of 2020)
27.The following day, the girls disclosed to a parent that a man had followed them in his red car and had offered them money to get in his car and show him where the bottle shop was. The police were informed and an investigation was commenced to determine the identity of the man.
28.As a result of an investigation, CCTV footage of the accused's vehicle in Belmont and Rivervale was obtained. On Thursday 23 January 2020, the accused was arrested by police and he participated in an audio‑visual record of interview. The accused admitted to speaking to two girls at Belmont Forum Shopping Centre, and that he spoke to the same two girls near IGA in Rivervale on a number of occasions on the same day, when not authorised to do so.
29.The accused denied offering the girls money and denied asking them to get in his car.
30.The accused stated that the girls were aged 10 to 11 years of age and that one of them was heavily limping. CCTV footage confirmed that child 2 was limping that day.
31.The accused admitted that he spoke to one of the children on her own in the vacant laneway for a few minutes.
32.The accused stated that he became scared and yelled at the child. When asked why he was scared, the accused stated that he was scared of reoffending.
33.The two children were interviewed on 1 February 2020. After the police reviewed further CCTV footage, they again interviewed the accused at Hakea Remand Centre on 6 February 2020 to discuss the child witness interviews and further CCTV footage. The accused declined to comment.
34.…
35.…
PE 5195/2020
36.…
37.On Tuesday 21 January 2020, the accused attended a meeting in Perth with his CCO. He did not disclose his contact with the children at Belmont Forum Shopping Centre on 18 January.
PE 4007/2020
38.At the same meeting with his CCO, the accused did not disclose his repeated contact with the children in Rivervale on 18 January.
39.…
…
43.…
Although it is not clearly and expressly alleged in the Statement of Facts, it is clear from the State's submissions on the applications that the State's case with respect to contravention offence PE 5193/2020 includes the following allegations:
1.When the accused spoke to AC by herself while JP was changing money for him (Statement of Facts, par 15), the accused asked AC to meet him at the end of the laneway and offered money to AC to do so;[5] and
2.The accused's intention in asking AC to meet him at the end of the laneway was to entice AC to a location at which he could commit a sexual act against her or in her presence.[6]
[5] State's Submissions [11.1].
[6] State's Submissions [33] ‑ [34], [39]; ts 156, 180 ‑ 185, 3 August 2020.
Further, and although it is again not clearly and expressly alleged in the Statement of Facts, it is clear from the State's submissions on the applications that the State's case with respect to the contravention charge includes an allegation that when the accused made the motion of drawing the knife across his throat (Statement of Facts, par 23) he did so in order to threaten or intimidate AC into being involved in sexual conduct (for example, watching him masturbate or performing fellatio on him).[7]
The evidentiary basis for the alleged facts of the contravention offences and the contravention charge, and the factual basis on which the applications are to be determined
[7] State's Submissions [11.7].
The alleged facts of the contravention offences and the contravention charge are based primarily on allegations made by the complainant JP (referred to in the Statement of Facts as 'child 1') during a visually recorded interview conducted with her by officers from the Western Australian Police Force Child Assessment and Interview Team (CAIT) on 1 February 2020, and on allegations made by the complainant AC (referred to in the Statement of Facts as 'child 2') during two visually recorded interviews conducted with her by officers from CAIT on 1 February 2020 and 9 May 2020.
The State also relies in support of the alleged facts of the contravention offences and the contravention charge, on closed circuit television footage and certain admissions made by the accused during a visually recorded interview conducted with him on 23 January 2020 by officers from the Sex Offender Management Squad.
During the two above referred to special hearings JP and AC gave supplementary oral evidence.
JP's supplementary oral evidence was relatively detailed. In her evidence‑in‑chief she confirmed that what she had said during the interview conducted with her was true. In cross‑examination, during which she gave the vast majority of her evidence, and in re‑examination, JP substantially maintained the version of events that she had provided during the visually recorded interview conducted with her.
AC's supplementary oral evidence was far less detailed than the supplementary oral evidence given by JP. This was due to the fact that within a relatively short time into cross‑examination AC became very distressed and refused to answer any further questions with the result that I brought the special hearing to an end. Nonetheless, in her evidence‑in‑chief AC confirmed that what she had said during the two interviews conducted with her was the truth. Moreover, although in cross‑examination AC said in response to a number of the questions asked of her that she did not remember or that she did not know, and admitted that some specific aspects of the account that she had given during the first interview conducted with her were not true, she did not clearly or expressly recant the material allegations that she had made in the two interviews conducted with her.
In light of the fact that at the special hearings neither JP nor AC recanted the material allegations made by them during the interview or interviews conducted with them, and given that nothing that occurred during the special hearings has caused the State to resile from any of the allegations made in the Statement of Facts or from the additional allegations specified in par 23 and par 24 above, it is appropriate, in determining the applications, to rely on the alleged facts as set out in the Statement of Facts and on the additional alleged facts specified in par 23 and par 24 above. I note that this was the approach that was adopted by the parties on the hearing of the applications.
Contravention offences - alleged facts in dispute
The Outline of Facts in Issue is in the following terms:[8]
[8] The references in the Outline of Facts in Issue to the paragraph numbers containing the alleged facts in dispute are references to the paragraph numbers of the Amended Statement of Material Facts filed on 27 March 2020 (the Statement of Facts having been filed after the preparation and filing of the Outline of Facts in Issue). I have therefore, in the above quote from the Outline of Facts in Issue, replaced the references to paragraphs of the Amended Statement of Material Facts filed on 27 March 2020 with references to the corresponding paragraphs contained in the Statement of Facts.
1.By reference to the relevant paragraphs of the [Statement of Facts] the accused outlines below the facts in issue.
PE 4006/2020
2.The accused does not accept:
(a) That he first engaged the girls in conversation [7].
(b) That he cleared the back seat of his vehicle [7].
(c) That he asked the girls if they wanted money [7].
(d) That he told the girls to get into the car [7].
(e)That he drove past the bus stop (where the girls were) for the purpose of observing the girls [8].
(f) That he had a sexual intention [9].
PE 5193/2020
3.The accused does not accept:
(a)That he called out to the two girls as they crossed the road [12].
(b)That he drove to a car bay next to a park to engage in conversation with the girls [13].
(c)That he engaged/initiated the girls in further conversation [13].
(d)That he 'hovered' in the area for the purpose of speaking to the girls [13].
(e)That he again asked the girls to get in the car with him [14].
(f)That he suggested the girls show him where the petrol station was [14].
(g) That he again offered the girls money [14].
(h)That he wanted to maintain conversation with child 2 [15].
(i)That [he] entered the laneway looking for the girls [16].
(j)That he 'engaged' in conversation with the children [16] (however the [accused] accepts he spoke to the children at this location).
(k) That he had a sexual intention [17].
PE 5194/2020
4.The accused does not accept:
(a) That he entered the laneway looking for the girls [19].
(b)That he purposively parked his car in an 'isolated' location or out of CCTV vision [19].
(c) That he initiated contact with child 2 [19].
(d) That he had a sexual intention [20].
(e) That he followed the girls with his car [27].
(f) That he offered the girls money [27].
(g) That he offered them money to get in his car [27].
(h)That he asked the girls to show him where the bottle shop was [27].
PE 5195/2020 and PE 4007/2020
5.The accused does not accept:
(a)That his failure to disclose the details of any contact with the girls was because of a sexual motivation on his part.
In light of the terms of the Statement of Facts, the terms of the additional alleged facts specified in par 23 and par 24 above, the terms of the Outline of Facts in Issue and the nature of the cross‑examination of the complainants during the special hearings, the alleged facts of the contravention offences (specifically, contravention offences PE 4006/2020, PE 5193/2020 and PE 5194/2020) that are in dispute and in respect of which the first application is made can, in my view, be succinctly stated as follows:
1.The accused approached, and initiated conversation with, the complainants at the Belmont Forum Shopping Centre (Belmont) (as opposed to the complainants approaching the accused and initiating conversation with him);
2.The accused, during his interaction with the complainants at Belmont, cleared items off the back passenger seat of his vehicle;
3.The accused, during his interaction with the complainants at Belmont, asked or told them to get into his car;
4.The accused, during his interaction with the complainants at Belmont, offered them money in order to entice them to get into his car;
5.The accused drove past the bus stop at Belmont, where the complainants were waiting for a bus, for the purpose of observing the complainants;
6.The accused drove to the Rivervale shopping centre complex area (Rivervale) for the purpose of continuing his interactions with the complainants;
7.The accused, after his arrival at Rivervale, on more than one occasion approached the complainants in his car with the intention of engaging with them (as opposed to the complainants repeatedly approaching and pestering the accused);
8.The accused, during his interactions with the complainants at Rivervale, asked or told them to get into his car;
9.The accused, during his interactions with the complainants at Rivervale, offered them money in order to entice them to get into his car;
10.The accused spoke to AC by herself while JP was changing money for him and asked AC to meet him at the end of the laneway and offered money to AC to do so;
11.The accused drove into the laneway at about 6.42 pm with the intention of locating and engaging with the complainants;
12.The accused drove into the laneway at about 6.51 pm and parked his vehicle with the intention of meeting AC at that location; and
13.The conduct that the accused engaged in towards the complainants at Belmont and Rivervale was sexually motivated; that is, was engaged in by him with the intention of committing sexual acts against, or in the presence of, either or both of the complainants.
I have not included in my above statement of the alleged facts in dispute the assertion contained in the Outline of Facts in Issue that the accused does not accept that his failure to disclose to his CCO his contact with the complainants was due to a sexual motivation on his part. I have not done so for two reasons. First, because the State does not make this allegation in the Statement of Facts. Second, because, as I have already indicated, the State is not seeking by the first application to adduce the evidence of the fact of, and the factual basis for, the accused's convictions for the prior offences in relation to the two contravention offences constituted by the accused's failure to advise of his contact with the complainants.
Contravention charge - alleged facts in dispute
At the hearing of the applications the accused's counsel confirmed that the accused's plea of not guilty to the contravention charge carries with it a denial of the following alleged facts of the charge:[9]
1.The accused, during the time that he interacted with AC alone in the laneway, asked AC if she wanted money, asked her if she wanted to get into his car, and told her that she would have to do something if she got into his car;
2.The conduct specified in point 1 above was sexually motivated;
3.The accused exposed his penis to AC while he sat in his car in the laneway;
4.The accused was in possession of a knife while he was in his car in the laneway and drew the knife across his throat in front of AC; and
5.The accused drew the knife across his throat in order to threaten or intimidate AC into being involved in sexual conduct (for example, watching him masturbate or performing fellatio on him).
[9] ts 173, 3 August 2020.
The facts of the prior offences
It is necessary at this point to set out the facts of the prior offences. The facts of the prior offences have for the purposes of the applications been agreed between the parties.
Offences the subject of the October 1999 convictions
The agreed facts of the offences of which the accused was convicted on 6 October 1999 are as follows.
On the evening of 30 July 1999 the accused, who was 29 years old, was in Broome. He spoke to a 6‑year‑old girl at a hostel and enticed her to some adjacent bushland. The child became upset and began to cry. The accused placed his hand over the child's mouth and took her to beyond a fence where he removed her clothing. At the time the accused was dressed only in a pair of shorts. The accused removed his shorts. The accused then got on top of the child and attempted to penetrate the child's vagina with his finger but was disturbed by the sound of people searching for the child. The accused picked the child up, threw her over a fence and jumped over the fence himself. The accused slapped the child on the face, pulled her hair and again put his hand over her mouth. The child kept saying that she wanted to go home. The accused threatened to slap her again. Eventually, the accused put the child's clothes back on, walked her back to the hostel and released her.
The accused was sentenced to a total of 6 years imprisonment for the offences. He was made eligible for parole.
Offences the subject of the June 2004 convictions
The agreed facts of the offences of which the accused was convicted on 11 June 2004 are as follows.
On the evening of 25 December 2003 the accused, who was 33 years old, was in Morley. The accused met a 7‑year‑old girl (the complainant) and her 10‑year‑old female friend in the complainant's street. The accused met the girls by chance. The accused showed pornographic images from a magazine to both girls before returning to his temporary lodgings in Beechboro.
On the next day, 26 December 2003, the accused again met the complainant and her friend. He met them at Arbor Park in Morley. He asked them for something to drink. The girls left and returned a short time later with water. The accused lured the girls to the position that he wanted them.
The complainant's friend rode her bike to another part of the park while the complainant approached the accused to give him the water. At this point the accused grabbed the complainant by the waist and dragged her into some nearby bushes where he threw her on the ground, removed his penis from his shorts, and demanded that she suck his penis. The complainant, fearing for her life, complied with the accused's demand for a few seconds. The accused then ran from the scene.
The accused was sentenced to a total term of 4 years and 6 months imprisonment for the offences. He was made eligible for parole.
Offences the subject of the November 2007 convictions
The agreed facts of the offences of which the accused was convicted on 26 November 2007 are as follows.
In November 2003 the two female complainants, J and L, were aged 12 years and 8 years respectively. J and L are sisters.
On the afternoon of 1 November 2003 the accused left his residence in Dianella. He was in possession of a backpack which contained a pornographic magazine. He was in possession of the magazine because he intended to go to a public toilet to masturbate.
The accused walked to some shops in the vicinity of Rosebery Street in Bedford. He saw J at the phone box at the shops.
The accused followed J as she walked to a nearby oval. He approached J at the park. He struck up a conversation with J and asked if she would go for a walk with him. He offered J some money and asked her if she would touch his penis. He produced the pornographic magazine and showed it to J. He then coaxed J over to a small shed on the oval and sat down next to her on the grass. He again showed her the pornographic magazine.
By this stage the accused was sexually aroused and had an erect penis. The accused asked J if she knew where there was somewhere they could go. He again offered J money. The accused and J then walked towards a street in Inglewood where L joined them.
The accused, J and L walked to a set of units which were under construction. The accused walked J and L to a unit in the middle of the complex. He took them to a store room in the garage of the unit which had walls, a roof and a concrete floor. He took the pornographic magazine from his backpack and placed it on the ground. He then pulled his shorts down and exposed his erect penis. He asked J if she would like to touch it. At this point both J and L began to cry. J told the accused that she did not like looking at the magazine and was upset.
The accused moved to the doorway of the storeroom so J and L were stopped from leaving. He lubricated his hand with his saliva and began to masturbate in front of the girls.
At this stage J and L became distraught and attempted to move past the accused in order to leave the room. However, the accused told them to face the wall. He continued to masturbate for several minutes until he ejaculated. He ejaculated onto the wall and the floor of the storeroom. However, some of his ejaculate landed on J's clothing. At this stage J and L were able to push past the accused who did not to attempt to stop them. They ran away from the unit.
The accused was not charged until 2007 (in prison) when his DNA was found to match the DNA found at the time of the offences.
The accused was sentenced to a total term of 2 years imprisonment for the offences to be served cumulatively on the sentence imposed on him for the offences of which he had been convicted in 2004. He was not made eligible for parole.
Applicable legal principles
I turn to the legal principles relevant to the determination of the applications.
In order for the evidence of the fact of, and the factual basis for, the accused's convictions for the prior offences (evidence of the prior offences) to be admissible under s 31A of the Act, the evidence must meet the requirements for admissibility stipulated in s 31A(2). The requirements for admissibility are as follows:
1.The evidence is propensity evidence or relationship evidence as defined in s 31A(1);
2.The court considers that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
3.The court considers 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.
With respect to the first requirement for admissibility, the term 'propensity evidence' as defined in s 31A(1) has a broad meaning. The term is defined to include, among other things, 'evidence of the conduct of the accused person' and 'evidence … of a tendency that the accused person has or had'. The word 'conduct' in this context, so far as is presently relevant, refers to the manner in which the accused person behaves or has behaved.[10] The words 'a tendency' in this context, so far as is presently relevant, refer to a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.[11] Accordingly, evidence that an adult accused person has or had a sexual interest in children will constitute evidence of a tendency that the person has or had within the meaning of the definition of 'propensity evidence' contained in s 31A(1).[12]
[10] The State of Western Australia v Jackson [2019] WASCA 118 [20].
[11] The State of Western Australia v Jackson [20].
[12] McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 [26]; The State of Western Australia v Jackson [54].
The term 'relationship evidence' is defined in s 31A(1) to mean 'evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time'. The ordinary meaning of the word 'attitude', from which there is no reason to depart in interpreting the definition of 'relationship evidence', is 'a settled opinion or way of thinking'.[13] Accordingly, the attitude of a person towards another person or class of persons is the person's settled opinion or way of thinking about the person or class of persons.
[13] Australian Concise Oxford English Dictionary (4th ed, 2003) 84.
There is a degree of overlap between the definitions of 'propensity evidence' and 'relationship evidence' contained in s 31A(1). There will often be cases where evidence which falls within the definition of 'propensity evidence' also answers the description of 'relationship evidence'.[14] However, the categories of evidence that constitute 'propensity evidence' and 'relationship evidence' are not entirely co‑extensive. Although a propensity may be demonstrated by a single episode of conduct or more than one episode of conduct, 'relationship evidence' includes evidence of the attitude of the accused person towards another person or persons over a period of time.
[14] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [44].
As to the second of the requirements for admissibility stipulated in s 31A(2), the relevant principles were stated in RMD v The State of Western Australia[15] as follows:
[15] RMD v The State of Western Australia [185] (Beech J as his Honour then was, Mazza JA agreeing). See also RMD v The State of Western Australia [50] ‑ [52] (Buss P); The State of Western Australia v Jackson [18] and MNA v The State of Western Australia [2020] WASCA 84 [64], [160].
(1)In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
(2)In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
(3)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue.
(4)The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), 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.
(5)The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.
(6)If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
(7)The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
(8)The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value. (citations omitted).
Although the above statement of principles in RMD v The State of Western Australia was made with reference to 'propensity evidence' within the meaning of s 31A(1), the principles as stated are broadly speaking equally applicable to 'relationship evidence' within the meaning of the section.
In The State of Western Australia v Jackson[16] the Court, in dealing with the question of the admissibility of propensity evidence under s 31A(2), made the following additional points in relation to the significant probative value requirement:
Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a)the evidence is capable of proving the propensity; and
(b)proof of the propensity increases the likelihood of the commission of the offences.
Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'. For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.
Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value. (citations omitted)
[16] The State of Western Australia v Jackson [21] ‑ [23].
For the purpose of determining the admissibility of propensity evidence and relationship evidence, a court must take the evidence at its highest from the perspective of the prosecution.[17] Thus the probative value of propensity evidence and relationship evidence is to be assessed by reference to what the evidence is capable of proving taken at its highest.[18]
[17] RMD v The State of Western Australia [52(b)].
[18] IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 [39] ‑ [54].
The fact that propensity evidence is capable of proving that an accused has a relevant sexual interest will not generally of itself be sufficient to warrant the conclusion that the propensity evidence is significantly probative of whether they acted in the way alleged. As was made clear by the plurality in McPhillamy v The Queen,[19] it is generally the tendency to act on a sexual interest that has significant probative value in showing that an accused has acted in a certain way on the occasion the subject of the charge.
[19] McPhillamy v The Queen [26] ‑ [27]. See also Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338; The State of Western Australia v Jackson [63] and MNA v The State of Western Australia [85] ‑ [86], [173].
Further, when the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually, where the tendency evidence is sought to be adduced to prove that an accused has acted in a certain way, be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together.[20]
[20] McPhillamy v The Queen [31].
As to the third of the requirements for admissibility stipulated in s 31A(2), fair‑minded people are reasonable members of the general community who are not lawyers but who it must be assumed 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.[21]
[21] Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [50]; Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 [45]; DKA v The State of Western Australia [2017] WASCA 44 [32]; RMD v The State of Western Australia [51].
In Dair v The State of Western Australia[22] Steytler P identified the three aspects of prejudice that may arise as a result of the admission of propensity evidence and which consequently may give rise to the risk of an unfair trial. The three aspects of prejudice identified by Steytler P are as follows:
1.The over strong tendency of the trier of fact to believe that the accused is guilty of the charge merely because he is a person likely to do such acts or, to put it another way, the tendency of the trier of fact to uncritically over value the propensity evidence and reason impermissibly that because the accused committed the prior offence he must also have committed the charged offence;
2.The tendency of the trier of fact to condemn, not because the accused is believed guilty of the offence charged, but because he has escaped punishment for other offences; and
3.The possibility that the trier of fact will become confused or distracted as it concentrates on resolving whether the accused actually committed the other offences.
[22] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [62] ‑ [67].
Steytler P also pointed out in Dair v The State of Western Australia[23] that when assessing the risk of an unfair trial for the purposes of the hypothetical comparison provided for by s 31A(2)(b) the court must take into account any directions that might be given in an attempt to overcome the prejudice and their likely effect on the trier of fact.[24]
[23] Dair v The State of Western Australia [64].
[24] See also Preston v The State of Western Australia [41] and DKA v The State of Western Australia [31].
Analysis
Is the evidence sought to be adduced propensity evidence and/or relationship evidence?
The first question to be considered in determining the applications is whether the evidence of the prior offences is 'propensity evidence' or 'relationship evidence' within the meaning of s 31A(1).
The State submits that the evidence of the prior offences is 'propensity evidence' because it is evidence of the conduct of the accused and also evidence of a tendency that the accused has. The State further submits that the evidence of the prior offences is 'relationship evidence' because it is evidence of an attitude or conduct of the accused towards another person, or a class of persons, over a period of time.
With respect to the State's submission that the evidence of the prior offences is evidence of a tendency that the accused has, it must be said that the terminology used in the State's Submissions to describe the tendency is not entirely consistent or as precise as it could be.[25] As I stated in MNA v The State of Western Australia:[26]
The identification with precision and specificity of the propensity which evidence sought to be adduced under s 31A is asserted to be evidence of, or in other words, is asserted to be capable of proving, is important. It is important because the precise and specific identification of the propensity which it is asserted is proved by the evidence is an essential pre-requisite to the proper analysis of the second requirement for admissibility of the evidence, namely whether the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value.
[25] The tendency is referred to in the State's Submissions as a tendency to act on a sexual interest [14], a tendency to act on a sexual attraction to young girls and lure young girls away with the intent of sexually offending against them [33], a tendency to act on a sexual interest in prepubescent girls [35], and a tendency to be sexually attracted to prepubescent girls and to act on that interest [48].
[26] MNA v The State of Western Australia [167].
However, at the hearing of the applications counsel for the State, in response to questions asked by me, made clear that the State's contention is that the relevant tendency is a tendency to have a sexual interest in young girls under the age of 13, and to act on the sexual interest by enticing (luring) young girls to a secluded location with the intention of sexually offending against them and then committing sexual acts against them or in their presence.[27] Counsel for the State also made clear, again in response to questions asked by me, that the State's position is that despite the period of time that has elapsed since the accused committed the last of the prior offences (a little in excess of 16 and a half years ago) the evidence of the prior offences is capable of proving not only that the accused had the relevant tendency, but also that he has the relevant tendency; that is, that he had and has a sexual interest in young girls under the age of 13, and that he had and has a tendency to act on his sexual interest by enticing young girls to a secluded location with the intention of sexually offending against them and then committing sexual acts against them or in their presence.[28]
[27] ts 157 ‑ 158, 165, 3 August 2020.
[28] ts 157 ‑ 158, 3 August 2020.
In support of its contention that the evidence of the prior offences is, despite the period of time that has elapsed since the accused committed the last of the prior offences, capable of proving that the accused has a tendency to act on his sexual interest by enticing young girls to a secluded location with the intention of sexually offending against them and then committing sexual acts against them or in their presence, the State points to the fact that for much of the period in question (approximately 11 and a half years) the accused was in custody and for the balance of the period (approximately five years) was subject to the stringent conditions of supervision orders imposed under the DSO Act.
The accused, for his part, does not dispute that the evidence of the prior offences is evidence that he had and has a tendency to have a sexual interest in young girls under the age of 13. However, the accused does dispute that the evidence of the prior offences is evidence capable of proving that the accused had or has a tendency to act on his sexual interest by enticing young girls to a secluded location with the intention of sexually offending against them and then committing sexual acts against them or in their presence. The accused submits that the evidence of the prior offences is incapable of proving a tendency to entice young girls to secluded locations with the intention of sexually offending against them.
The accused further submits that even if, contrary to his primary position, the evidence of the prior offences is capable of proving that the accused had a tendency to entice young girls to secluded locations with the intention of sexually offending against them, the evidence is, given the time that has elapsed since the accused committed the last of the prior offences, incapable of proving that the accused has such a tendency.
I am satisfied that the evidence of the prior offences is evidence of the conduct of the accused, that is, is evidence of the manner in which the accused behaves.
I am also satisfied that the evidence of the prior offences is evidence that the accused:
1.has a tendency to have a sexual interest in young girls under the age of 13; and
2.has a tendency to act on his sexual interest in young girls under the age of 13 by enticing young girls to a secluded location with the intention of sexually offending against them and then committing sexual acts against them or in their presence.
It follows that I am satisfied that the evidence of the prior offences is 'propensity evidence' within the meaning of s 31A(1).
In relation to my finding that the evidence of the prior offences is evidence that the accused has a tendency to have a sexual interest in young girls under the age of 13, I have not overlooked the fact that the accused committed the prior offences a little in excess of 16 and a half years ago. However, given the unusual and deviant nature of the sexual interest in question, and the fact that the accused acted upon the interest on three separate occasions over a number of years (once in 1999 and twice in 2003), it can, in my view, be inferred that the sexual interest is enduring in nature and still exists.[29] As I have already pointed out, the accused did not attempt to argue that I should not be satisfied that the evidence of the prior offences is evidence that the accused has the identified sexual interest.
[29] McPhillamy v The Queen [26].
As to my finding that the evidence of the prior offences is evidence of a tendency of the accused to act on his sexual interest in young girls under the age of 13 by enticing young girls to a secluded location with the intention of sexually offending against them and then committing sexual acts against them or in their presence, in my view the evidence is, contrary to the accused's submission, capable of proving that the accused enticed young girls to a secluded location with the intention of sexually offending against them. In this regard I make the following points by reference to the agreed facts of the prior offences:
1.In committing the 1999 prior offences the accused enticed the 6‑year‑old girl away from the hostel to some adjacent bushland and then committed a sexual offence against her;
2.In committing the November 2003 prior offences the accused asked the 12‑year‑old girl J to go for a walk with him, coaxed J over to a small shed, asked J if she knew where there was somewhere that they could go while also offering her money, walked J and the 8‑year‑old girl L to a storeroom in the garage of the unit that was in the middle of the set of units under construction, and then masturbated to ejaculation in the presence of J and L; and
3.In committing the December 2003 prior offences the accused, after the 7‑year‑old female complainant and her 10‑year‑old female friend had returned to give him the requested water, lured them both to the position that he wanted them, specifically a position close to bushes, and then, after the 10‑year‑old friend rode away on her bike, dragged the complainant into the bushes and sexually offended against her.
Further, in relation to my finding that the evidence of the prior offences is evidence capable of proving that the accused has the tendency to act on his sexual interest in the way specified despite the time that has elapsed since the last occasion on which the accused acted on the tendency, in my opinion there are two circumstances which, when considered together, are sufficient to support the drawing of the inference that the tendency is enduring and still exists. The first circumstance is the unusual nature of the tendency which is outside the realms of ordinary human behaviour and outside the boundaries of lawful behaviour. The second circumstance is that the appellant acted on the tendency on three separate occasions over a period of four years, the second and third of those occasions being within a relatively short time of him having been released from the term of imprisonment imposed for the 1999 prior offences.
As to the State's contention that the evidence of the prior offences is 'relationship evidence' within the meaning of s 31A(1), I am satisfied that the evidence is evidence of an attitude (a sexual interest) or conduct (enticing young girls to a secluded location and then committing sexual acts against them or in their presence) of the accused towards a class of persons (young girls under the age of 13) over time (a period of approximately 4 years between 1999 and 2003). It follows that I am also satisfied that the evidence of the prior convictions is 'relationship evidence' within the meaning of s 31A(1).
In summary, I am satisfied that the first of the requirements for the admissibility of the evidence of the prior offences stipulated by s 31A(2) is met.
Although I have found that the evidence of the prior offences is both 'propensity evidence' and 'relationship evidence' within the meaning of s 31A(1), the bases on which I have done so are, as is apparent from what I have said, essentially the same. Moreover, although I have found that the evidence of the prior offences is both propensity evidence and relationship evidence, the parties understandably argued the applications by reference to the evidence being propensity evidence. Therefore, from this point onwards I will, for ease of reference, refer to the evidence of the prior offences as propensity evidence, and will determine the applications by reference to the above identified tendencies; that is, the tendencies which the evidence of the prior offences are, in my view, capable of proving.
Does the propensity evidence have significant probative value?
Contravention offences
The State submits that the propensity evidence has significant probative value in relation to all of the disputed alleged facts of the contravention offences specified in par 32 above. More specifically, the State submits that the evidence of the accused's tendencies to have a sexual interest in young girls under the age of 13 and to act on the sexual interest by enticing young girls to a secluded location with the intention of sexually offending against them and then committing sexual acts against them or in their presence, is significantly probative of:
1.Whether the accused engaged in the conduct the subject of the disputed alleged facts set out in points 1 ‑ 12 of par 32 above; and
2.If the accused did engage in the conduct the subject of the disputed alleged facts set out in points 1 ‑ 12 of par 32 above, whether his conduct was sexually motivated; that is, was engaged in by him with the intention of committing sexual acts against, or in the presence of, either or both of the complainants (point 13 of par 32 above).
The accused submits that if I find that the evidence of the prior offences is capable of proving not only that he has a tendency to have a sexual interest in young girls under the age of 13 but also, contrary to his asserted primary position, that he has a tendency to act on the sexual interest by enticing young girls to a secluded location with the intention of sexually offending against them and then committing sexual acts against them or in their presence, the evidence is not significantly probative of either of the matters identified by the State for essentially two related reasons. First, because the features of the accused's conduct in committing the prior offences and the alleged features of his conduct the subject of the disputed alleged facts of the contravention offences are not sufficiently similar to link the two categories of conduct together, and therefore are not sufficiently similar to justify the conclusion that the evidence of the prior offences is of significant probative value in relation to the disputed alleged facts.[30] Second, because the accused has not acted on the asserted tendencies for a very long period of time, a little over 16 and a half years.
[30] McPhillamy v The Queen [31].
In my opinion evidence that the accused has a tendency to have a sexual interest in young girls under the age of 13 and a tendency to act on the sexual interest by enticing young girls to a secluded location with the intention of sexually offending against them and then committing sexual acts against them or in their presence is, despite the time that has elapsed since the accused last demonstrated the tendencies, relevant to the proof of the disputed alleged facts of the contravention offences. However, the question is not whether the evidence of the tendencies is relevant to the proof of the disputed alleged facts of the contravention offences. Rather, the question is whether the evidence of the tendencies would, either by itself or having regard to other evidence to be adduced, have significant probative value in relation to these allegations; that is, would either by itself or having regard to other evidence to be adduced, rationally affect, directly or indirectly, to a significant extent the assessment of the probability of the accused having engaged in the conduct the subject of the disputed alleged facts of the contravention offences. In determining this question, and bearing in mind that the existence of the accused's sexual interest in young girls under the age of 13 is not of itself sufficient to warrant the conclusion that the evidence of the prior offences is significantly probative of whether the accused engaged in the conduct the subject of the disputed alleged facts, it is necessary to consider the nature and extent of any similarities between the conduct comprising the prior offences (which is capable of proving the tendencies) on the one hand and the conduct the subject of the disputed alleged facts on the other.
The State submits that there are a number of similar features between the conduct of the accused comprising the prior offences and the conduct of the accused the subject of the disputed alleged facts of the contravention offences. The features of the conduct of the accused comprising the prior offences that the State submits are similar to features of the conduct the subject of the disputed alleged facts of the contravention offences are as follows:
1.The accused initiated contact with the victims of the prior offences in a public place;
2.The victims of the prior offences were previously unknown to the accused;
3.The victims of the prior offences were all prepubescent girls;
4.The victims of the prior offences were vulnerable by reason of their age and not being under any form of adult supervision;
5.The accused, having initiated contact with the victims of the prior offences, enticed them to a secluded location (albeit in a public area as opposed to a residence) where he could offend against them;
6.If required, the accused would repeatedly or persistently engage with the victims of the prior offences in order to encourage them to go with him to the location where he could offend against them; and
7.If necessary, the accused would entice the victims of the prior offences with money in order to have them go with him to the location where he could offend against them.[31]
[31] State's Submissions [42].
I accept that the first to fourth of the above identified features of the prior offences are similar to features of the accused's conduct the subject of the disputed alleged facts of the contravention offences.
I accept that the fifth of the above identified features of the prior offences is similar to a specific aspect of the conduct that the accused is alleged to have engaged in during the course of committing contravention offences PE 5193/2020 and PE 5194/2020. The specific aspect of the alleged conduct is comprised of the following (specified in points 10, 12 and 13 of par 32 above): the accused speaking to AC by herself while JP was changing money for him; asking AC to meet him at the end of the laneway; offering money to AC to meet him at the end of the laneway; driving into the laneway at 6.51 pm to meet AC; doing all these things with a sexual motivation. By this alleged conduct the accused asked and enticed AC to meet him in a secluded location in a public area, namely the end of the laneway, with the intention of committing sexual acts against, or in the presence of, AC.
I do not accept that the fifth of the above identified features of the prior offences is similar to other aspects of the accused's conduct the subject of the disputed alleged facts of the contravention offences. So far as PE 4006/2020 is concerned, although the State alleges that the accused asked JP and AC if they wanted money and asked or told them to get in his car, I do not consider that such alleged conduct can properly be said to amount to an enticement of the girls to accompany him to a secluded location (albeit in a public area) where he could offend against them. Such alleged conduct may obviously be viewed as amounting to the accused enticing the girls to get into his car, but this is significantly different conduct to that engaged in by the accused in committing the prior offences.[32]
[32] In his oral submissions counsel for the State accepted that the available evidence did not support a suggestion that the accused attempted to entice the complainants to accompany him from Belmont to Rivervale, or that 'the luring … specifically occurred at Belmont': ts 183, 3 August 2020.
Similarly, with respect to PE 5193/2020, although the State alleges that the accused asked or told JP and AC to get in the car with him in connection with a request that they show him where the petrol station was, and offered them money to get into his car, again I do not consider that such conduct can properly be said to amount to an enticement of the girls to accompany him to a secluded location (albeit in a public area) where he could offend against them.
In relation to PE 5194/2020, which relates to AC alone, the alleged conduct the subject of the charge is the contact between the accused and AC and does not contain any allegation of enticement on the part of the accused (this allegation forming part of the disputed alleged facts the subject of the contravention charge).
As to the sixth of the above identified features of the prior offences, persistence of engagement with the victim in order to entice the victim to accompany him to the location where he offended against her was not a feature of the 1999 prior offences. However, I accept that persistence of engagement with the victims in order to entice them to accompany him to the location of his offending was a feature of the November 2003 prior offences and the December 2003 prior offences. I also accept that the persistence of engagement feature is similar to the disputed alleged conduct of the accused in driving to Rivervale for the purpose of continuing his interactions with the complainants and, on arriving in Rivervale, approaching the complainants in his car on more than one occasion with the intention of engaging with them.
In relation to the seventh of the above identified features of the prior offences, it was only during the commission of the November 2003 prior offences that the accused offered money to the victim J. The offering of money to the victims was not an aspect of the accused's conduct in committing the 1999 prior offences or the December 2003 prior offences. Further, the accused's conduct in offering money to the victim J in committing the November 2003 offences was made in the context of enticing J to touch his penis and to accompany him to a secluded location. As I have already stated, in my view it cannot be said that any of the disputed alleged facts of the contravention offences, save for the allegation that the accused asked AC to meet him at the end of the laneway, amount to an allegation that the accused offered money to entice JP and AC to accompany him to a secluded location where he could offend against them, or for that matter to an enticement to engage in any form of sexual conduct. In these circumstances, I do not accept that the offering of money by the accused in the commission of the November 2003 prior offences is in reality a feature that is similar to the conduct the subject of the disputed alleged facts of the contravention offences.
In summary, in my opinion the first to fourth, the fifth to the extent explained, and the sixth to the extent that it relates to persistence of engagement, of the above identified features of the accused's conduct in committing the prior offences are similar to conduct of the accused the subject of the alleged disputed facts of the contravention offences.
Of course, to say that features of the accused's conduct in committing the prior offences are similar to features of the conduct the subject of the alleged disputed facts of the contravention offences is not to say that the evidence of the prior offences is significantly probative of whether the accused engaged in the conduct the subject of the disputed alleged facts. It is to this question that I now return.
Viewed individually, it must be said that none of the first to fourth and sixth of the above identified features of the accused's conduct in committing the prior offences are particularly striking, distinctive or unusual. Indeed, viewed individually the features can be said to be common to many instances of sexual offending against young female children. However, when the features are viewed collectively they do, in my opinion, reveal a distinct modus operandi involving the instigating of contact with young unsupervised girls in public locations and then, once contact is instigated, doing what is necessary to maintain the contact. In other words, in my view there is a clear and discernible link between the accused's conduct in committing the prior offences, most particularly the November 2003 and December 2003 prior offences, and the alleged conduct of the accused specified in points 1, 6, 7 and 11 of par 32 above. The existence of the clear and discernible link points towards a conclusion that the evidence of the prior offences, the evidence of the tendency, is significantly probative of these aspects of the alleged conduct of the accused.
So far as the fifth of the above identified features of the accused's conduct in committing the prior offences is concerned, in my view there is a clear and discernible link, something more than a mere general similarity, between the accused's conduct in committing the prior offences, all of which demonstrated to varying extents his tendency to entice the victims to secluded locations so that he could offend against them, and the alleged conduct of the accused in asking and enticing AC to meet him at the end of the laneway, a secluded location, so that he could commit a sexual act against her or in her presence. I am of this view even though the alleged conduct of the accused does not, unlike his conduct the subject of the prior offences, involve him actually physically accompanying AC to the secluded location. The existence of the clear and discernible link points towards a conclusion that the evidence of the prior offences, the evidence of the tendency, is significantly probative of this aspect of the alleged conduct of the accused.
Of course, the issue that must not be overlooked in this context is the time that has elapsed since the accused committed the prior offences, since he demonstrated the tendencies. As I have previously pointed out, a little in excess of 16 and a half years have passed since the accused committed the most recent of the prior offences. Ordinarily, the fact that a person has not acted on a tendency for a period in excess of 16 and a half years would militate against the conclusion that the tendency is of significant probative value in determining if the person has engaged in alleged conduct.[33] However, the lapse of time in the present case must be considered in light of the opportunity that the accused has actually had to give effect to his tendencies during the approximate 16 and a half year period. In this regard the following points can be made:
1.After his commission of the December 2003 offences the accused served his terms of imprisonment for the November 2003 offences and the December 2003 offences;
2.After serving his terms of imprisonment the accused remained in custody until 23 December 2010 pending the determination of an application under the DSO Act for him to be the subject of a continuing detention order;
3.From 23 December 2010 to August 2012 the accused remained in custody pursuant to a continuing detention order made under the DSO Act;[34]
4.In August 2012 the accused was released into the community on a supervision order made under the DSO Act;[35]
5.In early March 2013 the accused was taken back into custody as a result of being charged with a number of contraventions of the supervision order made in August 2012;[36]
6.On 26 April 2013 the accused was convicted of a number of offences of contravening the supervision order and was made the subject of a further continuing detention order;[37] and
7.In October 2015 the accused was released into the community on a supervision order[38] which on 7 December 2017 was amended by Corboy J so as to become the Supervision Order.
[33] See for example, McPhillamy v The Queen.
[34] Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405.
[35] Director of Public Prosecutions for Western Australia v Brown [No 5] [2012] WASC 276.
[36] Director of Public Prosecutions for Western Australia v Brown [No 6] [2013] WASC 148.
[37] Director of Public Prosecutions for Western Australia v Brown [No 6].
[38] Director of Public Prosecutions for Western Australia v Brown [No 8] [2015] WASC 390.
As is apparent from the above, during the period between December 2003 and October 2015 the accused spent only a short period of time in the community, approximately seven months (August 2012 to early March 2013). Further, while in the community during this short period the accused was subject to the onerous and strict supervision and monitoring conditions of a supervision order. Accordingly, the accused's opportunity and ability to act on his tendencies during the period between December 2003 and October 2015 was very limited.
Further, and again as is apparent from the above, although the accused was in the community from October 2015 up until the time of his commission of the contravention offences, a period of a little over four years, he was throughout this period again subject to the onerous and strict supervision and monitoring conditions of a supervision order. The existence of these conditions, I am satisfied, impacted on the ability of the accused to act on his tendencies and on the likelihood that he would do so.
A period of a little over four years is not an insignificant period of time. However, when I take into account that the accused was subject to the conditions of a supervision order during this period, the lapse of time is not such as to cause me to conclude that the evidence of the accused's tendencies as established by the prior offences is not significantly probative of whether or not the accused:
1.engaged in the conduct specified in points 1, 6, 7 and 11 of par 32 above; and
2.engaged in the conduct specified in points 10 and 12 of par 32 above with a sexual motivation; that is, spoke to AC by herself while JP was changing money for him, asked AC to meet him at the end of the laneway, offered AC money to meet him at the end of the laneway, and drove into the laneway at 6.51 pm to meet AC, all with the intention of committing, in that location, a sexual act against, or in the presence of, AC.
In my opinion the evidence of the prior offences and the relevant tendencies which the evidence is capable of proving, despite the time that has elapsed since the last demonstration of the tendencies, would either by itself or having regard to other evidence to be adduced, rationally affect, to a significant extent, the assessment of the probability of the accused having engaged in the alleged conduct specified in the previous paragraph.
The question which remains is whether the propensity evidence, the evidence of the prior offences, is significantly probative of the disputed alleged fact specified in point 13 of par 32 above to the extent that the alleged fact relates to the alleged conduct of the accused other than that specified in points 10 and 12 of par 32 above.
In my opinion, evidence capable of proving that the accused has a tendency to have a sexual interest in young girls under the age of 13 is significantly probative of whether any conduct that the accused did, in committing the contravention offences, engage in was sexually motivated. To put it another way, evidence capable of proving that the accused has a sexual interest in young girls under the age of 13 would, either by itself or having regard to other evidence to be adduced, rationally affect, to a significant extent, the assessment of the probability of whether any conduct that the accused did, in committing the contravention offences, engage in was sexually motivated.[39] Accordingly, while in my view the propensity evidence comprised of the evidence of the prior offences is not admissible to prove that the accused engaged in any of the conduct the subject of the disputed alleged facts of the contravention offences as set out in points 2, 3, 4, 5, 8 and 9 of par 32 above, if the conduct is independently proved by evidence other than the propensity evidence, the propensity evidence will be admissible to prove that the conduct was sexually motivated.[40]
[39] See generally The State of Western Australia v Jackson [61] ‑ [68] and MNA v The State of Western Australia [182] ‑ [183].
[40] The State of Western Australia v Jackson [61].
In summary, my ruling is as follows:
1.The evidence of the prior offences is admissible to prove that the accused engaged in the conduct the subject of the disputed alleged facts specified in points 1, 6, 7, 10, 11 and 12 of par 32 above, and that the conduct was sexually motivated (point 13 of par 32); and
2.If any of the conduct the subject of the disputed alleged facts specified in points 2, 3, 4, 5, 8 and 9 of par 32 above is independently proved by evidence other than the evidence of the prior offences, the evidence of the prior offences will be admissible to prove that the conduct was sexually motivated.
Contravention charge - alleged facts in dispute
The submissions made by the State and the accused in relation to the question whether the propensity evidence is significantly probative of the disputed alleged facts of the contravention charge specified in par 34 above largely mirror the submissions made in support of their respective positions relating to the disputed alleged facts of the contravention offences.
I note in relation to the contravention charge that the State does not contend that the evidence of the prior offences is admissible to prove that the accused's alleged exposure of his penis the subject of the charge was sexually motivated. The State does not do so because if the accused is proved to have engaged in this alleged conduct it will, for obvious reasons, not be in dispute that the conduct was sexually motivated. In other words, the sexual motivation of the alleged conduct comprised of the accused exposing his penis is not a fact in issue.[41]
[41] ts 153, 3 August 2020.
In order to determine the question whether the evidence of the prior offences is significantly probative of the disputed alleged facts of the contravention charge specified in par 34 above consideration must once again be given to the specifics of the conduct the subject of the prior offences.
The first, and obvious point to be made in this context, is that none of the prior offences involved the accused asking the victims to get into a car, or telling the victims that they were going to have to do something.
In committing the October 1999 prior offences the accused did remove his shorts, which was all that he was wearing, and therefore presumably exposed his penis. However, he did this as part of a course of conduct which involved him, after he had enticed the victim to some bushland, using force against the victim (including placing his hand over her mouth and taking her to beyond a fence), removing the victim's clothing, getting on top of the victim and attempting to digitally penetrate her vagina.
In committing the November 2003 prior offences the accused exposed his erect penis to the victims in a room from which he prevented the victims from leaving. Further, having exposed his penis he asked one of the victims to touch his penis and then proceeded to perform a sexual act in the presence of the victims, namely an act of masturbation to ejaculation.
In committing the December 2003 prior offences the accused's removal of his penis from his shorts was preceded by him dragging the victim into some bushes and throwing her on the ground. Further, having exposed his penis the accused demanded that the victim suck his penis and then briefly penetrated the victim's mouth with his penis.
It is apparent from what I have said that the circumstances which surrounded the accused's exposure of his penis in the course of committing the prior offences were different to the circumstances of the alleged exposure of his penis the subject of the contravention charge. The accused's exposure of his penis in committing the October 1999 and December 2003 prior offences was accompanied by the infliction of a sexual act against each of the victims. The accused's exposure of his penis in committing the November 2003 prior offences was accompanied by a request of one of the victims to touch his penis and by the performance of a sexual act (masturbation to ejaculation) in the presence of the victims. These features are not present in the alleged facts of the contravention charge. Rather, the allegation is that the accused, while sitting in his car and while the complainant AC was standing outside his car, exposed his penis to AC without making any demand or request of AC, without attempting to perform any sexual act against her, and without performing any additional overt sexual act (for example, masturbation) in her presence.
There are clearly differences between the nature of the sexual acts engaged in by the accused as part of committing the prior offences and the nature of the alleged sexual act the subject of the contravention charge, specifically the exposure by the accused of his penis. However, I do not consider that the existence of these differences provides a basis for concluding that the evidence of the prior offences does not have significant probative value in relation to the alleged exposure by the accused of his penis to AC (point 3 of par 34 above). In my opinion, the tendencies that are capable of being proved by the evidence of the prior offences, that is, a tendency of the accused to have a sexual interest in young girls under the age of 13 and a tendency to act on his sexual interest in young girls by enticing them to a secluded location with the intention of sexually offending against them and then committing sexual acts against them or in their presence, are tendencies that would, either by themselves or having regard to other evidence to be adduced, rationally affect, to a significant extent, the assessment of the probability of whether the accused, having enticed AC to the end of the laneway (a secluded location), if a finding to this effect is made, did commit in the presence of AC the sexual act of exposing his penis. I do not consider that the fact that the alleged sexual act is different in nature to the sexual acts the subject of the prior offences and is not alleged to have been accompanied by any other overt sexual conduct on the part of the accused, is sufficient to deprive the evidence of the tendencies of its significant probative value. I repeat in this context the point previously made that it is not in dispute that if the accused did expose his penis in the circumstances alleged by AC, the act of doing so was a sexual act.
In arriving at the conclusion stated in the previous paragraph I have not overlooked the issue of the time that has elapsed between the accused's commission of the prior offences and his alleged commission of the contravention charge. However, for the reasons that I have given in the context of dealing with the contravention offences, the lapse of time does not cause me to fail to be satisfied of the significant probative value of the evidence of the prior offences in relation to the allegation that the accused exposed his penis to AC while sitting in his car in the laneway.
I am not satisfied that the evidence of the prior offences is significantly probative of the disputed alleged fact specified in point 1 of par 34 above. There is, in my view, no sufficient similarity between the conduct of the accused in committing the prior offences and this disputed alleged fact to justify the conclusion that the evidence of the prior offences is significantly probative of the disputed alleged fact.
It is apparent from what I have said that the accused did not, in committing any of the prior offences, produce, make use of, or make any gesture with, any form of weapon. This being the case, I am not satisfied that the evidence of the prior offences would, either by itself or having regard to other evidence adduced, rationally affect, directly or indirectly, to a significant extent, the assessment of the probability of the accused having been in possession of the knife, having produced the knife in the presence of AC, and having drawn the knife across his throat. Accordingly, my ruling is that the evidence of the prior offences is not admissible to prove these allegations (specified in point 4 of par 34 above).
The question which remains is whether the evidence of the prior offences is significantly probative of the disputed alleged facts specified in points 2 and 5 of par 34 above.
I am satisfied that evidence capable of proving that the accused has a tendency to have a sexual interest in young girls under the age of 13 is significantly probative of whether the accused, if he engaged in the conduct specified in point 1 of par 34 above, did so with the intention of committing sexual acts against, or in the presence of, AC. I am also satisfied that evidence capable of proving that the accused has a sexual interest in young girls under the age of 13 is significantly probative of whether the accused, if he engaged in the conduct specified in point 4 of par 34 above, did so with the intention of intimidating AC into being involved in sexual conduct with him. In making the second of these findings I have taken into account that the alleged drawing by the accused of the knife across his throat is alleged to have occurred, if not contemporaneously with, then close in time to, the accused's exposure of his penis. Accordingly, while in my opinion the propensity evidence, that is, the evidence of the prior offences, is not admissible to prove that the accused engaged in any of the conduct the subject of the disputed alleged facts specified in points 1 and 4 of par 34 above, if the conduct is independently proved by evidence other than the propensity evidence, the propensity evidence will be admissible to prove that the conduct was engaged in with the intentions specified in points 2 and 5 of par 34 above.
In summary, my ruling is that the evidence of the prior offences is admissible to prove the disputed alleged facts of the contravention charge specified in points 2, 3 and 5 of par 34 above.
Probative value compared to risk of unfair trial
Given that the propensity evidence, if permitted to be adduced, will be that the accused has been convicted of the prior offences, and given that the facts of the prior offences are agreed, the second and third possible aspects of prejudice identified by Steytler P in Dair v The State of Western Australia will not arise in the trial of the contravention charge or in the trial of issues. Further, given that the trial of the contravention charge and the trial of issues are to take place before a judge alone, the first possible aspect of prejudice identified by Steytler P, specifically the tendency of the trier of fact to uncritically over value the propensity evidence, is also very unlikely to arise. The judge or judges who preside over the trial of the contravention charge and the trial of issues will be well able to direct themselves in relation to the use that can, in accordance with my rulings, properly be made of the propensity evidence and to faithfully comply with any such direction, and in doing so guard against any tendency to uncritically over value the propensity evidence in the determination of the facts and issues in dispute. In short, the risk of the trial of issues or the contravention charge trial being rendered unfair by reason of the admission of the propensity evidence is very low if not non‑existent.
Given the very low risk of the accused's trials being rendered unfair by the admission of the propensity evidence, I am satisfied that the probative value of the propensity 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 the disputed alleged facts the subject of the contravention offences, and all relevant evidence of the accused's guilt for the offence the subject of the contravention charge must have priority over the risk of an unfair trial.
Additional point
Consistently with the Statement of Facts, I have dealt with the issue of the admissibility of the propensity evidence to prove the allegations that the accused engaged in the conduct specified in points 10 and 12 of par 32 above with a sexual motivation on the basis that this alleged conduct is the subject of contravention offences PE 5193/2020 and PE 5194/2020. However, clearly the State will adduce evidence of this alleged conduct at the contravention charge trial and allege at the contravention charge trial that the accused did engage in this conduct. Accordingly, I state, to avoid any uncertainty on the issue, that my ruling that the propensity evidence is admissible to prove the allegations that the accused engaged in the conduct specified in points 10 and 12 of par 32 above with a sexual motivation should be understood as applying not only to the trial of issues but also the contravention charge trial.
Conclusion
For the reasons I have given I allow the applications in part and to the extent that I have stated.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick21 AUGUST 2020
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