The State of Western Australia v Erjm
[2013] WADC 131
•14 AUGUST 2013
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ERJM [2013] WADC 131
CORAM: BOWDEN DCJ
HEARD: 14 AUGUST 2013
DELIVERED : 14 AUGUST 2013
FILE NO/S: IND 1417 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
ERJM
Catchwords:
Admissibility of propensity/relationship evidence - The Evidence Act 1906 s 31A
Legislation:
Evidence Act 1906
Result:
Leave granted to admit propensity/relationship evidence
Representation:
Counsel:
The State of Western Australia : Ms M-N Mattocks
The Accused : Mr S Adams
Solicitors:
The State of Western Australia : Director of Public Prosecutions
The Accused : Legal Aid Commission
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
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
Stubley v The State of Western Australia [2011] HCA 7
The Queen v Handy [2002] 2 SCR 908
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 four counts of indecently dealing with a child (KMG) over the age of 13 years and under the age of 16 years, one count of indecently dealing with a child (MCG) under the age of 13 years, one count of sexually penetrating a child (MCG) over the age of 13 and under the age of 16 years, and one count of indecently dealing with a child (MCG) over the age of 13 years and under the age of 16 years.
The allegations
Count 1 alleges the accused grabbed KMG when she was 13 and kissed her, putting his tongue in her mouth and touching her on the breast.
Count 2 alleges that on another occasion, whilst he was in a swimming pool with KMG, who was 13, the accused grabbed her legs, wrapped them around his waist, kissed KMG and pressed his penis against her body.
Count 3 alleges that KMG, whilst aged 13, was in the pool on another occasion with the accused when he wrapped his arms around her hugged her and repeatedly pushed his erect penis against her vagina.
Count 4 alleges that when KMG was 14 years and asleep in her bed, the accused entered her bedroom, climbed into bed, started kissing her on the back of the neck and felt her breasts.
Count 5 alleges that when MCG was 12 and in a bedroom watching TV, the accused undid the buttons on her top, put his hand under her bra and touched her breasts.
Count 6 alleges that just after MCG 13th birthday, she was playing cards with the accused and he put his hand under the table, down her shorts and underwear and inserted his finger in her vagina.
Count 7 alleges that when MCG was aged between 13 and 16 years she came home early from school and was alone with the accused when he started playing with her breasts and touched them.
The propensity evidence
The other sexual conduct
The prosecution wish to lead evidence of other sexual conduct allegedly committed by the accused against KMG which includes occasions where the accused masturbated in her presence, put her hand on his penis so she could masturbate him, helped her to get undressed and encouraging her to kiss his penis.
The prosecution also wish to lead evidence of other sexual conduct committed by the accused against MCG which including the accused touching her breasts and digitally penetrating her.
The State's submissions
The State says the accused's other sexual conduct towards KMG show the nature of the relationship between KMG and the accused and shows his grooming and sexualisation of her at an early age and this makes it more probable that counts 1 – 4 occurred and puts the evidence relating to those counts into context.
The State argues the evidence would be admissible both at common law and under s 31A of the Evidence Act 1906. They say the other sexual conduct towards KMG is admissible in relation to all counts on the indictment, even those relating to MCG, because it shows an attitude or conduct the accused has to a class of persons, namely his nieces, and show a tendency that the accused has to sexually interfere with young girls with whom he is in a position of trust.
They say it shows he has an ongoing sexual interest in female children and that he is prepared to act on that sexual interest even with other adults present and say such evidence may be used by the jury in assessing the accused's guilt on any count and assessing why the complainants did not complain at an earlier age. Further, the State says it goes to rebut any defence of innocent explanation and is relevant to proofing the elements of the offence.
They say that the accused other sexual conduct towards MCG is admissible for similar reasons.
The defence submissions
The defence say that counts 1 – 4 all involve the accused kissing, rubbing the breast, or rubbing his penis against KMG's body or touching her body and counts 5 – 7 allege that the accused either touched MCG's breast, put his finger in her vagina or played with her breast and the uncharged acts involve primarily the accused masturbating in KMG's presence or placing her hand on his penis or having her kiss his penis.
The defence argue that the alleged other sexual conduct is not similar to any conduct in any count on the indictment and at their highest, it suggests a tendency to masturbate in the presence of KMG at a particular house and does not suggest a tendency to commit different sexual acts in a different location.
Further, they say that if admissible it would only have probative value in the relationship between the accused and KMG and has no probative value in relation to MCG and the evidence would be inadmissible in the case against MCG and that there would be no warning or direction that could be given by the trial judge that would overcome the risk of prejudice and an unfair trial would therefore be created.
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 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'.
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 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.
Significant probative value means evidence that is probative value is important or of consequences: 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'.
It must be evidence that rationally affects, directly or indirectly, the assessment of probability of the relevant fact in issue to a significant extent.
In determining whether the evidence has significant probative value the court must look at the facts in issue and the significance or importance the evidence may have in establishing those facts.
In real terms, the questions at trial are likely to be whether the alleged acts occurred, and in some counts, were the touchings deliberate, and if so were they indecent.
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.
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.
The length of time between the alleged other sexual conduct and the charged offences is a factor to consider, because there may be such a time difference that the other sexual conduct loses its probative value or can no longer be said to have significant probative value, however that is not the case here.
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]
It is open for a jury to reason that a person with a sexual interest in his young nieces is more likely to offend against those nieces than somebody who does not have such an interest.
In my opinion, the differences in the nature of the other sexual conduct and the charged acts are insignificant. Propensity 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 real issue is whether the accused's other sexual conduct is capable of establishing that he has a sexual interest in young nieces at the date of the alleged commission of the offence. In my opinion it is.
The fact that the accused had a sexual interest in his young nieces is part of the circumstantial case against the accused, it is 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 is also relevant also to rebut the defences of accident or innocent explanation.
Establishing the accused has a sexual interest in his young nieces at a time relatively contemporaneous with the commission of the offence has significant probative value in terms of the issues at the trial. It has a probative value which is important or of consequences to the relevant issues.
The evidence of the charged and other sexual conduct allegedly committed by the accused towards KMG is admissible not only in the counts involving KMG but also in those counts involving MCG.
Similarly, the evidence of the charged acts and other sexual contact alleged against the accused involving MCG is admissible not only in the case involving MCG but also in the counts involving KMG.
The basis of the admissibility is the same, that is, that the alleged sexual contact demonstrates a sexual interest by the accused in his young nieces and is therefore relevant in all counts on the indictment. Cross‑admissibility, in my opinion, is clearly established on the basis of the evidence being capable of establishing the sexual interest alleged by the State.
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?
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: APC v The State of Western Australia [2012] WASCA 159 [89] (Mazza JA).
Where evidence is otherwise admissible and satisfies the s 31A criteria, it cannot be excluded on the discretionary ground ordinarily available under common law 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.
There is a two-fold risk attached to propensity evidence, firstly, that the jury may put more weight than is logically justified on the propensity evidence and, secondly, may convict the accused based on his bad character by reasoning that because he behaved in the way alleged in the propensity evidence, he is likely to have committed the offences alleged in the indictment: APC v State of Western Australia, Donaldson v The Stateof Western Australia [127] ‑ [130] (Roberts‑Smith JA) and Buiks [138] (Murray AJA); The Queen v Handy [2002] 2 SCR 908.
There is also a danger that the adverse affect on the juries perception of an accused and on their reasoning process creates a risk that the jury will decide the case on improper or irrational basis rather than a logical one connected with the issue: Tasmania v Martin [No 2] [63]
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.
In Dair Steytler P [66] considered fair-minded people were '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'. Miller JA considered that fair-minded people were 'reasonable people'.
A demonstrable sexual interest by the accused in his young nieces in the context of a trial involving allegations of sexually interfering with his young nieces is important evidence for a jury to consider, along with the other evidence, in determining whether they are satisfied of the accused's guilt beyond reasonable doubt on the charge they are then considering.
Fair-minded people would, in my opinion, think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
I therefore grant leave for the State to lead the proposed evidence.
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