The State of Western Australia v DJH
[2013] WADC 153
•3 OCTOBER 2013
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DJH [2013] WADC 153
CORAM: BOWDEN DCJ
HEARD: 16 SEPTEMBER 2013
DELIVERED : 3 OCTOBER 2013
FILE NO/S: IND 511 of 2013
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
DJH
Catchwords:
Application for leave to lead propensity/relationship evidence - Accused charged with indecent dealing offences - Proposed relationship/propensity evidence relates to possession of child exploitation material six years after the alleged offences
Legislation:
Evidence Act 1906
Result:
Leave to admit propensity/relationship evidence refused
Representation:
Counsel:
State of Western Australia : Mr T Karunaratne
Accused: Ms M R Barone
Solicitors:
State of Western Australia : State Director of Public Prosecutions
Accused: Barone Criminal Lawyers
Case(s) referred to in judgment(s):
AJ v The State of Western Australia [2007] WASCA 228
AJE v The State of Western Australia [2012] WASCA 185
APC v The State of Western Australia [2012] WASCA 159
Asplin v The State of Western Australia [2013] WASCA 72
Buiks v The State of Western Australia [2008] WASCA 194
Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Donaldson v The State of Western Australia (2005) 31 WAR 122
KRM v The Queen (2001) 206 CLR 221
Mansell v The State of Western Australia [2009] WASCA 140
SJX v The State of Western Australia [2010] WASCA 243
Stubley v The State of Western Australia [2011] HCA 7
Tasmania v Martin (No 2) 213 A Crim R 226
The Queen v MM [2004] NSWCCA 364
The State of Western Australia v Osborne [2007] WASCA 183
Zammit v The State of Western Australia [2007] WASCA 66
BOWDEN DCJ:
The indictment
The accused is charged with five counts of indecently dealing with a child under the age of 13 years and one count of encouraging a child under the age of 13 years to do an indecent act.
The allegations
Count 1 alleges that the accused indecently dealt with SHS in circumstances where SHS, who was 12 , had gone to the accused's house, and after watching a DVD showing mainly boys with no pants, had retired to the accused's bedroom and whilst in the bedroom, the accused allegedly touched SHS's penis.
Counts 2 – 6 allegedly occurred on a different date and place and involved a different complainant. The offences allegedly occurred when JAS, aged 8, was at the accused's residence and the accused showed him a magazine depicting naked females including a photo of a girl with a penis in front of her that had semen coming from it, and then exposed his penis to JAS (count 2), asked JAS to expose his penis (count 3) and then touched JAS's penis on three separate occasions (counts 4, 5 and 6).
The propensity evidence sought to be led
The parties have agreed that if the evidence is admissible, by consent the jury will be told that on 12 September 2011 the accused was in possession of 184 child exploitation images including child pornography depicting the penile penetration of the anus of male children by an adult. The ages of the children depicted ranged from 1 to 15.
Further, that on 9 October 2011 the accused was in possession of 60 images and two movie files that depicted images of child pornography, depicting a child sucking the penis of an adult male and digital penetration of a child's anus (hereinafter collectively referred to as the 'proposed evidence').
The State's submission
The State wish to lead the evidence for two purposes.
Firstly, they say the proposed evidence is significantly probative because it shows the accused has a strong sexual interest in extremely young prepubescent boys of an approximately similar age to the complainants and has a tendency to be sexually attracted to young boys.
Secondly, they say the evidence is directly relevant to a fact in issue, being whether the accused showed the victims the DVD and magazine as alleged.
The State say in each case the proposed evidence is significantly probative because it would rationally affect a jury's assessment of whether or not the accused behaved towards the complainants in the manner alleged.
The defence submissions
The defence deny that the proposed evidence is propensity evidence.
Further, they say that either way the state intends to use the evidence, it does not either by itself or having regard to other evidence to be led, have significant probative value because there is a material difference between possessing child exploitation material and physically carrying out offences upon young males, and say whilst it might be tempting to reason that a person is more likely to act upon on a sexual interest said to be shown by possessing child exploitation material at a latter date, it is not something which the jury can judge from its own experience.
They say the accused's possession of such material is counter‑intuitive to the states argument because it shows his sexual interest is confined to viewing images and not performing physical acts.
The defence point out that the DVD referred to by SHS shows 'mostly boys with their pants off' and the magazine referred to by JAS shows females of unknown ages.
They also point out that when interviewed by the police about the proposed evidence, the accused denied he had an interest in children saying 'I didn't download the material to watch it or look at it' and said he just collected data.
In addition, the defence say if the evidence does have significant probative value, the 2011 offences were such that fair‑minded people would be so revolted by the accused behaviour and would likely be impermissibility biased against him to such an extent that no reasonable jury could put those thoughts aside and it is impossible to cure such prejudice by judicial direction as the more it is mentioned the worse it becomes.
They say therefore that fair‑minded people would not think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
Section 31A of the Evidence Act
For evidence to be admitted pursuant to s 31A of the Evidence Act the evidence must be:
(1)relationship and/or propensity evidence;
(2)have significant probative value; and
(3)the probative value of the evidence compared to the degree of risk an unfair trial must be 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 it propensity/relationship evidence?
The Evidence Act defines propensity evidence, inter alia, as 'other evidence of the conduct of the accused' and relationship evidence as 'evidence of the attitude or conduct of the accused person towards another person, or a class of persons over a period of time'.
These definitions are extraordinarily wide in their scope: Asplin v The State of Western Australia [2013] WASCA 72.
The proposed evidence is evidence of the conduct of the accused and evidence of his attitude or conduct towards another person, or a class of persons over a period of time and is clearly both propensity and relationship evidence.
Is the evidence of significant probative value?
To be of probative value, the evidence must be evidence that 'could rationally affect, directly or indirectly, the assessment of the probability of the existence of the fact in issue in the proceedings and explain a statement or event that would otherwise appear curious or unlikely': Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385, 60 ‑ 61 (Steytler P).
To have significant probative value, the evidence must be more than merely relevant, it must be evidence that probative value is important or of consequences, and evidence that rationally affects, directly or indirectly, the assessment of probability of a relevant fact in issue to a significant extent. Dair (Steytler P); Buiks v The State of Western Australia [2008] WASCA 194 (Miller & Buss JJA); Stubley v The State of Western Australia [2011] HCA 7 [11].
The probative value of the evidence may 'lie in the fact that it discloses some feature which raises as a matter of common sense and experience the objective improbability of its bearing any explanation consistent with the accused's innocence'.
In determining whether the evidence has significant probative value the court must look at the facts in issue, the purposes for which it is led and the significance or importance the evidence may have in establishing those facts. There is a need for a logical nexus between the proposed evidence and the facts in issue: Tasmania v Martin (No 2) 213 A Crim R 226 [35]
Propensity and relationship evidence can have significant probative value even though the acts are not identical or similar to the charged acts alleged against the accused: KRM v The Queen (2001) 206 CLR 221 [66].
The accused has made no formal admission in relation to any fact in issue at the trial and absent such admission, the State is entitled to present its case on the basis that all facts are in dispute. The question in this trial is likely to be whether the alleged acts occurred.
It is for a jury to decide whether evidence is to be accepted, and if so, what weight to give it. In assessing whether the evidence has significant prohibitive value, the evidence is to be taken at its highest from the perspective of the prosecution: AJE v The State of Western Australia [2012] WASCA 185 [73].
There is no doubt that events which occur at one period of time can bear upon the attitude or a tendency of a person at a later or earlier period of time: AJ v The State of Western Australia [2007] WASCA 228; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482.
Insofar as the first basis upon which the State wishes to lead the evidence, that is, as it shows the accused had a sexual interest in young children at the time of the charged offences, establishing the accused has a sexual interest in young children at a time relatively contemporaneous with the commission of the offence would have significant probative value in terms of the issues at the trial. It would have probative value which is important or of consequences to the relevant issues and would be one strand that the jury can consider with other direct or circumstantial evidence in determining whether they are satisfied that the accused committed the offence they are then considering. It would also be relevant to rebut the defences of accident or innocent explanation.
The accused protestations that he does not have an interest in children and that when he downloaded the images, he did not watch or look at them is irrelevant when considering whether the possession of that material is capable of leading a jury to infer that it demonstrates a sexual interest in young children at the time of its possession.
A number of cases have held that a person who is in possession of and/or looks at child exploitation material may be more likely to act on that demonstrated sexual interest than one who does not and no expert evidence is required to make such evidence admissible because it accords with common human experience that a person who has had thoughts about some type of act is, to some extent, more likely to perform an act of that type than a person who has never had such thoughts. Similarly, it has been said that it is not to the point that many persons who fantasise about some acts never actually do them: Tasmania v Martin (No 2) [39]; The Queen v MM [2004] NSWCCA 364 [61]
In APC v The State of Western Australia [2012] WASCA 159 Mazza JA said [97]:
However, there is a material difference between a sexual interest directed towards a person's siblings when a child and a sexual interest in that person's own children or step-children as an adult. While it might be tempting as an intuitive exercise, to reason that a person is more likely to have a sexual interest in his or her own children or step-children if the same person had, as a child, a sexual interest in their siblings it is not something that a jury can judge from its own experience. Nor was there any evidence, expert or otherwise, to enable a jury to conclude that sexual activity between adolescent siblings is a common or significant characterise of the antecedents of those who, as adults sexually abuse their own children. Evidence of that kind would be necessary before a jury could reasonably conclude that the evidence of PC and MC made it more likely that the appellant was guilty of sexually abusing the children. In the absence of evidence of that kind, it cannot be concluded the evidence of PC and MC was probative of the appellant's guilt led alone significantly probative of the guilt.
The comments relating to the need for expert evidence relate to the facts of that case which dealt with acts committed with his siblings whilst the accused was a child and which established a sexual interest in his siblings and the relationship of that sexual interest to acts committed as an adult against his own children or step-children.
Those comments do not, in my opinion, specifically relate to the question of whether expert evidence is required to establish a person who possesses child exploitation material is more likely to perform a sexual act against a child than a person who has never possessed such material.
In the event, it is not necessary for me to decide that question because before possessing child exploitation material, is it capable of making it more likely that the accused would commit sexual acts against children, there must be a nexus between the child exploitation material and the offending. In many cases that nexus is established because the possession of the child exploitation material is contemporaneous with the offending.
The real issue is whether the possession of child exploitation material approximately six years after the charged offences were allegedly committed, is capable of establishing that the accused had a sexual interest in young males at the date of the alleged commission of the offence. In my opinion, it does not.
The question of a temporal connection between the proposed evidence and the alleged offences is always a question of degree and if there was a more contemporaneous temporal connection, the inference that the accused acted on the sexual interest established by the proposed evidence is more readily drawn, but where there is a six years gap between the alleged offences and the proposed evidence, the nexus between the two is weakened to a point where, in my opinion, it cannot be said that the proposed evidence is capable of showing that six years earlier the accused had a sexual interest in young males and therefore it lacks probative value and is inadmissible.
The State refereed in its written submissions to Asplin v The State of Western Australia. That case involved proposed evidence which was capable of establishing that the accused had a sexual interest in young females in December 2007 to September 2008 and the charged offences occurred in November 2010. Further, the proposed evidence showed that the offender had expressed an urge to act out that interest and was fearful that he would act out the interest in the future. In Asplin the relatively contemporaneous temporal connection and the expressed urges of the accused provided the nexus between the proposed evidence and the charged acts such that the proposed evidence was capable of establishing a sexual interest in young girls at a time relatively contemporaneously with the offences charged
In their oral submissions, the State referred to SJX v The State of Western Australia [2010] WASCA 243. In that case, notwithstanding that the interval of 22 years, the court held there was significant coincidence between the circumstances of the propensity evidence and the charged acts established by the fact that at the time the sexual misconduct occurred, T (complainant) and D (propensity evidence) were of a similar age, in the offender's care, had a familial relationship with him and the offender used violence and reward to both of them and the misconduct was similar in nature and therefore the propensity evidence had significant probative value.
In the case at hand, the nexus is not provided by time interval between the proposed evidence and the charged acts, nor in my opinion, by the broadly similar ages of the complainant and the children depicted in the child exploitation material or any other feature. The propensity evidence involves different conduct to the charged acts, and there is nothing else to supply sufficient connecting nexus to make the evidence probative.
Even if the proposed evidence did establish the accused had a sexual interest in young males, the six year gap and different nature of the evidence, in that the proposed evidence involves possession of child exploitation material and the charged offence involve the physical acts and the absence of anything in the proposed evidence showing that the accused would act on his sexual desire and commit the offences charged is such that the logic that would lead to a conclusion that the proposed evidence shows the accused had a sexual interest in young males would not be so compelling to lead to a conclusion that the proposed evidence was of significant probative value: Tasmania v Martin [63] Porter J.
Insofar as the second basis upon which the State wishes to lead the evidence, that the possession of the child exploitation material is relevant to a fact in issue in this case, that fact being whether or not the accused showed SHS a DVD depicting 'boys mainly with no pants on' shortly before the commission of count 1 and whether he showed JAS a magazine containing, inter alia, naked females of an unknown age and at least one pornographic image of a female, age unknown, I reach a similar finding.
Firstly, I reject the defence's submission that because the images in the magazine shown to JAS were of females of an unknown age, the evidence would be on that basis inadmissible. The significance of the evidence is that on the prosecution's case, the accused was prepared to show material of a sexual nature to children in an attempt, the jury could infer, to arouse them. The ages and sex depicted in the material is irrelevant for that purpose.
However, for the evidence to be admissible on the second basis, it would have to be capable of affecting directly or indirectly the assessment of the probability of existence of the disputed fact and/or explain a statement or event that would otherwise appear curious or unlikely.
In this regard, the crucial question would be whether possession of the child exploration material six years after the offence is capable of being relevant to establish either possession of broadly similar material six years earlier or that such material was shown six years earlier to children. For reasons previously expressed, I am of the opinion that the proposed evidence is not capable of achieving that aim as it lacks probative value, or if it has that value, it cannot be said to have significant probative value.
Accordingly, on either basis, the State intend to lead the evidence, my conclusions are the same and even if the proposed evidence was probative, I do not consider it has significant probative value.
Is the probative value compared to the degree of risk of an unfair trial such that a fair-minded person would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial?
Although this question is unnecessary to answer, as I have found the proposed evidence lacks probative value or if it has that value lacks significant probative value, for the sake of completeness I shall answer it
Section 31A requires a comparison between the significant probative value of the propensity evidence and the risk of an unfair trial.
The weighing process in s 31A(2)(b) requires weighing things which are incommensurable, and making an assessment, of what a hypothetical fair-minded person would think and not what the presiding judicial officer would think APC v The State of Western Australia [89] (Mazza JA). Asplin v The State of Western Australia [32]
There is no common law discretion to exclude evidence that satisfies the s 31A criteria, on the grounds that its admission would be unfair or because its probative value is substantially outweighed by its prejudicial effect: Donaldson v The State of Western Australia (2005) 31 WAR 122 [140] (Roberts-Smith JA) and Buiks [138] (Murray AJA).
The introduction of propensity/tendency evidence is always likely to involve the risk of an unfair trial: Di Lena. The unfairness does not mean the increased ability of the prosecution to prove their case by asking a jury to draw rational inferences. However, it does include a two-fold risk that firstly, it may have an adverse affect on the juries perception of the accused and they may reason that they can convict the accused because he behaved in the way alleged in the propensity evidence and therefore he must have committed the offences alleged, and secondly, it also encompasses the risk that the jury will decide the case on an improper or irrational basis rather than a logical one connected with the issues, and particularly that they may put more weight than is logically justified on the propensity evidence or be overwhelmed by it: Thompson v Martin (No 2) [63]; APC v State of Western Australia; Donaldson v The Stateof Western Australia [127] ‑ [130] (Roberts-Smith JA) and Buiks [138] (Murray AJA).
However, a jury will accept and faithfully apply the directions of a trial judge: Zammit v The State of Western Australia [2007] WASCA 66 [65] (Steytler P); Mansell v The State of Western Australia [2009] WASCA 140 [49] (Martin CJ). In almost all cases the risk can be overcome by an appropriate direction to the jury about the basis of admissibility and the manner in which the evidence may be used and the manner in which it may not be: The State of Western Australia v Osborne [2007] WASCA 183 [39] (Wheeler JA); Mansell.
Fair-minded people are 'members of the public who are not lawyers, who have informed themselves at least of the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all relevant circumstances': Dair Steytler P [66].
If the evidence had significant probative value in that it demonstrated a sexual interest by the accused in young males, then in the context of a trial involving allegations of sexually interfering with young males, that evidence would be important evidence for a jury to consider, in determining whether they are satisfied of the accused's guilt beyond reasonable doubt and in those circumstance fair-minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
If the evidence had significant probative value in that it was relevant to a fact in issue in this case, being whether the accused showed the victims the DVD and magazine as alleged, and admissible for that limited purpose only, directions as to the limited use of the evidence and a warning for the jury not to engage in propensity reasoning would need to be given and I consider that fair‑minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
However, as previously indicated, I do not consider he proposed evidence had probative value or significant probative value.
I would refuse leave for the State to lead the proposed evidence.
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