The State of Western Australia v GBT
[2006] WASCA 75
•11 MAY 2006
THE STATE OF WESTERN AUSTRALIA -v- GBT [2006] WASCA 75
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 75 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:11/2006 | 20 APRIL 2006 | |
| Coram: | STEYTLER P WHEELER JA BUSS JA | 11/05/06 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA GBT |
Catchwords: | Criminal law and procedure Joinder of charges of sexual offences Principles Whether prejudice from joinder Section 31A Evidence Act 1906 (WA) Whether evidence in respect of different complainants mutually admissible |
Legislation: | Criminal Procedure Act 2004 (WA), s 133 |
Case References: | Donaldson v The State of Western Australia [2005] WASCA 196 Pfenning v The Queen (1995) 182 CLR 461 Phillips v The Queen (2006) 80 ALJR 537 R v Novac (1976) 65 Cr App Rep 107 State of Western Australia v Munmurrie [2005] WASC 133 Wood v The State of Western Australia [2005] WASCA 179 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- GBT [2006] WASCA 75 CORAM : STEYTLER P
- WHEELER JA
BUSS JA
- Appellant
AND
GBT
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WAGER DCJ
Citation : STATE OF WESTERN AUSTRALIA -v- GBT [2006] WADC 10
File No : IND 1416 of 2004
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Catchwords:
Criminal law and procedure - Joinder of charges of sexual offences - Principles - Whether prejudice from joinder - Section 31A Evidence Act 1906 (WA) - Whether evidence in respect of different complainants mutually admissible
Legislation:
Criminal Procedure Act 2004 (WA), s 133
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr J Mactaggart
Respondent : Mr S W O'Sullivan
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Ian Farquhar & Co
Case(s) referred to in judgment(s):
Donaldson v The State of Western Australia [2005] WASCA 196
Case(s) also cited:
Pfenning v The Queen (1995) 182 CLR 461
Phillips v The Queen (2006) 80 ALJR 537
R v Novac (1976) 65 Cr App Rep 107
State of Western Australia v Munmurrie [2005] WASC 133
Wood v The State of Western Australia [2005] WASCA 179
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1 STEYTLER P: I agree with Wheeler JA.
WHEELER JA:
The appeal
2 The respondent was charged on an indictment alleging 78 counts of sexual misconduct, ranging from unlawful and indecent dealing (in a variety of forms) to sexual penetration, in relation to a total of eight complainants. Twenty-nine of those counts relate to the respondent's natural daughter, LKH. With one exception, all other complainants were friends of LKH who visited her home, and from time to time stayed overnight. The remaining complainant was a friend of LKH's sister.
3 On 23 December 2005, the respondent filed an application to sever the indictment, without indicating precisely what form the respondent alleged the severance should take. On 3 February 2006, Wager DCJ made an order severing the indictment so that there would be one trial in relation to all of the counts relating to the complainant KMB, the only complainant in respect of whom sexual penetration by the respondent is alleged, together with a variety of other counts which her Honour identified relating to the respondent's natural daughter, LKH, which occurred over the same period of time as the counts relating to KMB (and often within minutes of those counts). Although there was no formal order extracted, it appears from her Honour's reasons that she contemplated that there should then be a further separate trial including all of the other complainants, with the possible exception of KMB's twin sister, NMB, and the remaining counts relating to the complainant, LKH. In relation to NMB, her Honour seems to have taken the view that the two counts relating to her could conveniently be included on the indictment in respect of either trial.
4 It is my view that her Honour was in error in ordering that the indictment should be severed, either in the way which she contemplated or (save possibly for the counts relating to MLN) in any way. In order to understand why that is so, it is desirable first to set out, as briefly as I can, the detail of the allegations made by each of the complainants.
The complainants - LKH
5 The first indecent dealing which LKH recalls occurred when she was approximately 6 years of age. She was playing with BPG on that day, at LKH's house. The respondent came home from work and agreed to play "chasey" with them. He made up the rules. One of the rules was that
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- when he caught each girl he would take her, one at a time, into his bedroom, to "punish" her. The other girl would wait in the lounge room.
6 The respondent caught LKH first, took her to his bedroom, and put her across his legs, face down, with her genital area close to his. He pulled her knickers down and smacked her gently on the bottom a number of times. As he did so, he lent on her so that her genital area pressed against his, and she felt his erect penis against her. He stopped for a break, sat back and stretched out so that the genital contact between them continued. He then smacked her another 10 times.
7 After that, he let her go and took BPG into the bedroom. When they returned, BPG said to LKH something to the effect that she could feel the respondent's penis during that incident and that it was "yukky". LKH said to BPG that the respondent was probably only "mucking around". She felt that she should protect her father from an allegation of discreditable conduct.
8 Games of chasey of that kind became a regular institution and would be played very frequently with LKH and her friends, when her friends came to visit.
9 At a later time, a new "punishment" was introduced, which the respondent called "squashes". That required LKH to lie face down on the bed while the respondent would lie on top of her, simulating sexual intercourse through their clothing. He would open LKH's legs a little and would rub his penis between her legs, so that his penis was rubbing against her vaginal area. That punishment became a frequent event. She remembers an occasion on which considerable pressure was used, so that the force of the respondent's penis against her pushed her knickers inside her vagina.
10 On one occasion, LKH, feeling somewhat jealous because the respondent spent more time with BPG than with LKH, hid in a room adjacent to the respondent's bedroom and saw the respondent doing "squashes" with BPG.
11 At a later time, when LKH was playing chasey with the respondent and another friend, the smacking punishment progressed so that the respondent would touch LKH's vagina with his fingers each time he smacked her.
12 At around that time, she remembers one game of a slightly different kind, which involved the respondent chasing LKH and her friend and
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- trying to pull their knickers down. When he did so, he smacked each of them on the bare bottom in the presence of the other.
13 LKH alleges that the respondent's conduct continued over the years. In about 1995, when she was 11, he played similar games with LKH and a friend, RLM. When she was 13 in 1997, there were similar games with LKH and LFB. Again, with LFB, she recalls an occasion when the respondent left the bedroom door open and she watched him smack LFB on the bottom. It was over the top of LFB's clothes, but the position seems to have been similar to that employed by the respondent when smacking LKH.
14 During games with LFB, the respondent also employed a different punishment, which he called the "typewriter". LKH saw him sit on LFB, pinning her arms above her head with his knees and tapping on her chest with his fingers. He did the same to LKH. He poked her in the chest with considerable force, hurting her. His penis was at roughly her face level, and as she squirmed his penis would, from time to time, brush across her face (apparently through his clothes). She could feel that his penis was erect.
15 LKH recalls a number of similar occasions with LFB. She recalls that on one of them, LFB watched while the respondent performed the "typewriter" on LKH in the bedroom. She recalls that on that particular night, LFB was particularly angry at the respondent's conduct. On that occasion, when the respondent took LFB home, LKH went inside the house with her to ensure that LFB did not complain to her mother. Again, she felt as though she was responsible for the respondent's conduct and should protect him.
16 During the same period in which LFB came to visit, LKH was friends with RAH, who is the subject of count 32. During one weekend visit by RAH, RAH complained to LKH that the respondent had kissed her "as if he was kissing his wife". That description corresponds with RAH's description in her statement of an open-mouthed kiss on the mouth, which shocked her. LKH told RAH that she would speak to her father about that and "sort it out". She spoke to the respondent after RAH had left, saying what RAH had told her, and warned him that RAH would tell everyone and "blow it all out of proportion". Although he generally encouraged LKH to have her friends visit, he would not thereafter encourage visits by RAH and sometimes would say "No" when LKH asked if RAH could visit.
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17 In 1999 when she was about 15, LKH became friends with KMB and NMB. NMB did not visit often, but KMB did. LKH speaks of chasey games with both girls, which, so far as she was concerned, ended in the "typewriter" and in "squashes" of the kind already described. Significantly, so far as KMB is concerned, LKH's statement contained accounts of an occasion on which the respondent required them to watch a pornographic video with him, occasions when he came into the bathroom while the girls were showering together and tickled and pinched them, an occasion when the respondent pulled his penis out of his pants and put it close to KMB's face, another occasion on which the respondent exposed himself to both girls, and gives an account of certain occasions on which KMB says that the respondent engaged in sexual penetration of her, which would indicate that the respondent had the opportunity to do so. She recalls this conduct continuing until 2000. Also significantly so far as KMB is concerned, LKH recalls that during the "games" that the respondent played with the girls, he would often say to them things like that he would "get" them and that there was nothing the girls could do about it because he was stronger.
18 LKH says that the respondent played the chasey game with almost every friend she had stay over. There were apparently a lot of friends who stayed over. The respondent was generally in charge of the house at night when the friends stayed, since LKH's mother worked late at night. In 2002, LKH's sister, DH, told her that DH's friend, MLN, the subject of count 78, had said that the respondent had kissed MLN "like an adult". LKH reported this to her mother, who was apparently very upset and immediately told the respondent that she was leaving him.
19 Against that background, the statements of the other complainants, aside from KMB, can be summarised briefly.
BPG
20 Between the ages of 5 and 8, BPG recalls playing with LKH. She recalls games of chasey with the respondent and describes smacks similar to those described by LKH, although she does not seem to describe her knickers being pulled down. She uses the word "typewriter". She describes conduct similar to the "squashes", although she does not use the name. She thinks she said something to LKH about feeling the respondent's penis against her. She says that she wanted reassurance from LKH that she was not the only one that it was done to, and that it was normal. She did not complain because she was scared of the respondent and did not think anyone would believe a child.
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RLM
21 RLM describes smacks when she was about 9 years of age. She was confused by them, but not scared because LKH was in the room the first time, and LKH did not seem to think there was anything unusual in the conduct. On the next occasion, however, only she and the respondent were in the room. Her evidence was that the respondent "always" wanted to play chasey.
LFB
22 LFB was about 13 at the relevant time. She describes teasing with the respondent, chasing, and tickling on the ribs and on the side of the breasts. She said that the respondent gave her what he called the "typewriter", poking her breasts. She said that the respondent engaged in this conduct often. He did it to LKH as well. She considered it inappropriate, but did not want to "make an issue" of it.
RAH
23 RAH often stayed at LKH's house. On one occasion, which was close in time to her 16th birthday, the respondent gave her an open-mouthed kiss, "like a boyfriend would give you". She was repulsed. The respondent told her not to tell. However, she did tell LKH. She got the impression LKH did not want to believe her, and LKH suggested that maybe her father was just being "affectionate".
NMB
24 NMB was the sister of KMB, but the two girls were never very close. She recalls when she was about 14 the respondent would play chasey with the girls, and would tickle them all over their body. She describes an occasion on which she was hiding, and he caught her in DH's bedroom. He pushed her so that she fell backwards onto DH's bed and lay on top of her, rubbing his penis up and down on her vaginal area through their clothing. She told him to get off and pushed him. She did not play chasey any more that night. The following week, when they were again playing chasey, he grabbed her by the breast and by the vagina. She told him to let her go. She was upset, and insisted on going straight home.
MLN
25 MLN was a friend of DH, rather than of her sister, LKH. She used to sleep at the respondent's house a lot. She regarded the respondent as a father-figure, having lost her own father when she was 13. She recalls an
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- occasion when she was 15, in about 2001. She was going to bed when the respondent came into her room and gave her a hug. However, he would not let her go, rubbed her back and asked for a kiss on the lips, suggesting that she give him a "proper kiss". She said that she would scream for DH and he became very angry and threatened to make her life a "living hell" if she did, or if she told anyone. She did subsequently tell DH. This was the complaint which caused the separation of the respondent and his wife.
KMB
26 When KMB first stayed at LKH's house, she would sleep in LKH's room, at first on a mattress on the floor. This began in about 1999, when KMB was about 13. She recalls an occasion when the two girls were in the room and the respondent walked in and said words to the effect that "I'm going to hurt you and there's nothing you can do" (an expression similar to that reported on other occasions by LKH). She was scared, but LKH said the respondent was "just mucking around". However, in the night, KMB woke up to the respondent rubbing her breasts. He then had sexual intercourse with her. She may have screamed at first because of the pain, but did not do so thereafter. She "sort of froze". The next morning, she told LKH that the respondent had raped her, but LKH said that he would not do that, and did not seem to believe her. She did not tell anyone else because she felt ashamed.
27 She recalls a later occasion when the respondent began chasing the girls "out of the blue". They both hid in the wardrobe. He found them. LKH ran away, but he threw KMB onto the mattress and rubbed her vaginal area with his penis through their clothing. She yelled to LKH for help. She later found LKH and asked why she had not helped, but LKH said she had not heard her. The next morning, she told the respondent not to behave in that way. He replied that she could not tell him what to do. LKH was present at the time, and she is sure that LKH could hear. The next time she saw the respondent he said not to say anything to anyone, or he would "do more".
28 She recalls an occasion when both girls were in LKH's bedroom and he came in wearing only a bathrobe, pulled the bathrobe apart and rubbed himself on both LKH and KMB. LKH simply allowed him to do so. Neither girl tried to help the other. She avoided LKH's place for a while, but then later went back.
29 She remembers a time when there was a chasing game, in which her sister, NMB, participated and that NMB suddenly stopped playing. LKH got angry with NMB on this occasion.
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30 She describes a type of poking of the chest that resembled the "typewriter".
31 She describes a number of occasions of sexual assault. As I have noted, LKH does not suggest that she ever witnessed a sexual assault. However, her evidence does suggest that the respondent had an opportunity to sexually assault KMB, on the occasions on which KMB said that that took place. KMB describes occasions like those described by LKH, when the respondent would expose himself to the girls, and an occasion when he required them to watch a pornographic video with him. Significantly, given that KMB asserts that the offences occurred on a number of occasions when she was in the same bedroom as LKH, LKH's evidence was that she would on occasion wake and hear a "ruffling" in the night, and would sometimes realise her father was in the bedroom, but thought that he was "just mucking around", and would go back to sleep.
32 KMB's evidence describes how KMB and LKH would shower together and sleep together in an attempt to avoid the respondent's attentions. She said that she was scared to go back to LKH's house, but wanted to keep LKH safe. She did not really know how she could help keep LKH safe, but seemed to have thought that, at least when the respondent was directing attention to her, at that particular time LKH was spared.
Admissibility of evidence
33 It is plain from the description of these offences, that much of the evidence relating to one count would be admissible in relation to other counts, and for a variety of purposes.
34 The position of LKH in these events is critical. Her Honour would have severed the indictment, so far as LKH was concerned, at count 38. By that stage, LKH was approximately 15 years of age. The evidence of the earlier counts relating to LKH would plainly be relevant to count 38 and to all of the counts relating to LKH which are later in time, for three reasons. First, they would be necessary to explain the terminology of the "typewriter" and the "squashes", which stemmed from a much earlier time when the respondent had behaved in that way towards LKH. Second, they would be relevant to the obvious question of why a girl of that age would allow her father to behave in such a way towards her, apparently without protest, and apparently without complaining to anyone. A jury could accept that she did so because she had been accustomed, from a very early age, to accept that behaviour from her father. It seems relatively clear from her protective reaction when others complained that
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- she was aware that the behaviour was not entirely normal, but, having been accustomed to it from the time she was about 6 years of age, a jury might well accept that she would have no understanding of precisely how abnormal it was. The third and related reason for the earlier conduct being relevant, would be to explain why it was that the respondent might have thought that he could get away with such conduct in relation to a girl of that age. A jury might well accept that the fact that she had never previously complained would have emboldened him to continue. It appears to me that the evidence of each earlier count relating to LKH is relevant in respect of each count relating to her which is later in time, in order to explain both why the respondent considered that he could act in that way without discovery, and to explain LKH's reaction to his offending.
35 LKH's attitude to the respondent's offending is directly relevant to the complaints which relate to RAH, NMB, KMB, BPG, LFB and RLM, for related reasons in each case. In the case of each of those complainants, a jury might well wonder why no complaint was made by any of those girls to their parents, or to some other adult. BPG's evidence was that she was reassured when LKH told her that the respondent had behaved similarly toward her. RLM was reassured and not scared because LKH was present and LKH did not think that the respondent's behaviour was unusual. A jury might well infer that LFB's reluctance to "make an issue" of the respondent's behaviour was also related to the apparent acceptance of that behaviour by LKH.
36 So far as RAH, NMB and KMB were concerned, LKH behaved in a way which would indicate to those girls that she did not wish them to complain, and which was directly protective of the respondent. So far as RAH was concerned, LKH attempted to explain the behaviour away, and further warned the respondent against behaving in that way again. So far as NMB was concerned, KMB became angry when NMB did not wish to play chasey any more. So far as KMB was concerned, LKH appeared to accept that the respondent's behaviour was undesirable, but to minimise its significance.
37 The evidence of the respondent's offending against LKH would serve to explain why she accepted that his behaviour was disreputable and perhaps unpleasant, but was, nevertheless, able to minimise its significance and to protect him in circumstances where there might otherwise have been complaints. So far as KMB is concerned, it also serves to explain why LKH may not have understood, or may have been
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- reluctant to accept, that the respondent's conduct extended to sexual penetration.
38 So far as all of the girls are concerned, the respondent's offending against LKH also helps to explain why it was that he thought that he could get away with such conduct, over such a long period of time, and against so many different girls. LKH was both his bait, in luring her friends around to play, and his protector in circumstances where her friends may otherwise have thought his behaviour so inappropriate that they should say something. If the offences, particularly against the older girls, and particularly KMB, were considered in isolation, a jury might well think it implausible that the respondent would behave in the way that he did in relation to older girls, without any apparent fear of discovery or disclosure, and uttering only few and rare threats directed at preventing disclosure. That conduct would seem less unlikely and less implausible in circumstances where the evidence in relation to the counts against the other girls indicated that the respondent had been getting away with such behaviour over a very long period of time, and in circumstances where, as can be seen from his differing treatment of KMB and NMB, he may have considered that he was becoming a very good judge of who would be prepared to accept such conduct and who would not. Finally, so far as KMB is concerned, the respondent's offending against LKH helps to explain, in part, why it was that KMB returned to the respondent's house, even after having been sexually assaulted.
39 In summary, all of the evidence in relation to LKH helps to explain not only why she did not complain of the respondent's conduct, but also why others did not. All of his offending in relation to LKH and in relation to the other girls is relevant to explain why in the case of each complainant the respondent obviously considered that it was safe for him to behave as he did. So far as KMB is concerned, the evidence relating to LKH and relating to the other complainants has the additional relevance I have mentioned.
40 So far as the younger girls are concerned, evidence in relation to one count is admissible in relation to another for two additional reasons. By "younger girls", I mean BPG, RLM, LFB, and LKH during the years leading up to the time she was about 14 or so. Evidence of the other counts would tend to rebut any suggestion that any of the girls had simply imagined the events in question, perhaps based upon some real event, half-remembered, which had been incorrectly recalled, or blown out of proportion. That one young girl might fantasise about behaviour by her own father or her friend's father as having sexual overtones may be a
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- reasonable possibility, but the possibility becomes a wholly unreasonable one when it is seen that a number of girls describe identical behaviour, even in many cases attributing to the respondent the identical terminology for that behaviour. The improbability of all of those girls imagining almost identical events might well be such as to lead a jury to reject any possibility that the events in question were simply imagined.
41 Further, in relation to the younger girls, it might be suggested in relation to one girl that the actions of the respondent were wholly innocent, in the sense that he was merely playing ordinary childhood games with his daughter and his daughter's friend, that any apparent sexual contact was merely accidental, and that on an occasion when his penis may have been erect, that was an unintended and brief consequence of the contact, rather than being, so far as the respondent was concerned, an important part of it. The sheer frequency of contact between the respondent's genital region, and particularly his erect penis, and the genital regions of the various girls may well be thought by the jury to render any suggestion of accident or innocent association implausible.
42 The only two counts which fall into a somewhat different category are those relating to RAH and to MLN. So far as RAH is concerned, it would seem to me that the description of the incident with RAH is not, of itself, probative in any way in relation to any of the other counts. What is relevant and admissible, however, is the reaction of LKH when RAH complained to her, and LKH's warning to the respondent. They are relevant and probative for reasons I have already described; of LKH's protection of the respondent, and the respondent's knowledge that LKH would protect him.
43 So far as MLN is concerned, the incident is one of a different character from the others. The complaint was to DH and not to LKH. LKH's reaction on this occasion was not protective; rather, she told her mother. The respondent may wish evidence of this event to be admitted, on the basis that it demonstrates that LKH was not always protective of him. However, assuming that he does not, it would seem to me that it is not otherwise admissible on the state of the evidence as contained in the appeal books.
44 Depending upon the way the trial is conducted, events concerning MLN may become admissible. That is because it is not unusual in cases of this kind for a family member, such as the mother of the child involved, to give evidence which is broadly to the effect that she saw no inappropriate conduct on the part of the accused man. That evidence is
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- presumably admissible on the basis that it would be expected that another adult living in the house would have noticed some inappropriate behaviour had it persisted over a long period and been often repeated. The evidence which is contained in a number of the complainants' statements about the respondent's wife working at night, and about the fact that he rarely behaved in an inappropriate way when she was present, goes some way to explaining why she may not have noticed such behaviour in this case.
45 However, there is also material in some of the statements suggesting that the respondent's wife may have had some awareness of, or concern about, inappropriate conduct on his part towards her daughter's friends. It is plain that she was not happy with his being in LKH's bedroom when the girls were there, and that she had some unarticulated opposition to LKH having friends staying over on a regular basis. If she were to give evidence to the effect that she had not noticed or suspected anything untoward, that evidence could be explored by reference to material that I have mentioned in the statements of the other girls. However, her reaction to being told about the respondent's conduct in relation to MLN, might arguably be thought to be an overreaction if that conduct was one isolated incident of the respondent seeking a kiss from MLN, as it was described. Her immediate indication to the respondent that she proposed to leave him is suggestive of a view that that event was something in the nature of a "last straw". For those reasons, the evidence relating to MLN may become admissible, depending upon what evidence, if any, is in due course led from the respondent's former wife. However, it is not admissible on the materials as they presently stand.
Severance of indictment
46 Against that background, I return to her Honour's decision. The basis upon which her Honour reached the conclusion that it would be appropriate to sever the indictment appears to be that contained in [16] and [17] of her Honour's reasons under the heading "The defence position". This was essentially to the effect that it would be an "unwieldy and ... insurmountable task" to direct the jury in relation to the admissibility of the evidence concerning each count. The respondent's counsel had submitted that there was, in those circumstances, a danger that the jury would simply "throw its hands up" and reach compromise verdicts because they would not be able to follow the Judge's direction, because of the complex nature of the direction required and the prejudicial nature of the evidence in relation to the various counts. Her Honour appears to have accepted that that would be the case.
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47 However, at [19] of her Honour's reasons, her Honour appears to have accepted that merely severing the indictment would not render evidence of counts which were not contained in each indictment inadmissible in relation to the other. She noted that the State may wish to consider leading "relationship evidence/uncharged acts evidence" in relation to LKH in relation to matters earlier in time than count 38. Unfortunately, it appears that counsel for the respondent, before her Honour, made only the most general of submissions concerning mutual admissibility, while counsel who then appeared for the appellant did not analyse questions of admissibility in the way I have explained. Questions of admissibility are generally critical in severance applications, and the failure to deal with these questions led to a gap in her Honour's reasoning.
48 As I have already explained, it was not just the evidence of the earlier acts relating to LKH which would be relevant, as her Honour seems to have thought. The whole history of the respondent's earlier behaviour would help to explain why he, otherwise inexplicably, apparently thought that he might with impunity be able to sexually assault KMB, and to explain the reactions of LKH.
49 The State submits that, once it is determined that evidence on one count is admissible in relation to another, no prejudice can flow from the joinder of those counts, and accordingly there can be no order for separate trials. In support of that proposition, the State cites Donaldson v The State of Western Australia [2005] WASCA 196 at [101], where Roberts-Smith JA said that in that case "If the evidence on one count was admissible in respect of the others (and vice versa), there clearly could be no prejudice from the joinder. If there was no such likelihood of prejudice demonstrated, it was not open to his Honour to make a separate trials order." However, that submission overlooks the fact that in Donaldson the only prejudice which was suggested was that which arose from the admission of what was asserted to be otherwise inadmissible evidence. At [146], Roberts-Smith JA said:
"Once it is shown that the evidence is mutually admissible, it would be rare for the joinder to give rise to the prejudice of which s 133 speaks. Here, counsel for the appellant was unable to suggest any likelihood of prejudice arising otherwise than because the evidence was not mutually admissible. There was accordingly no other factor to be taken into account by his Honour."
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- That is, his Honour left open the possibility that unfair prejudice may stem from some circumstance other than the admission of otherwise inadmissible and prejudicial evidence.
50 For the purposes of the present case, I am prepared to accept that prejudice in the sense contemplated by s 133 of the Criminal Procedure Act 2004 (WA) can flow from some circumstance other than the admission of otherwise inadmissible evidence. I also accept for present purposes that such prejudice might arise if there should be joined in an indictment a very large number of counts, which require directions of such complexity that no reasonable jury could be expected to follow them.
51 However, in my view, the task facing the jury if all these counts are joined in one indictment is not of a complexity which would require the indictment to be severed. Further, severing the indictment would not, in any event, cure the difficulty which her Honour perceived, since it will be necessary, if the State wishes to lead evidence of the severed counts, for that evidence to be admitted and for directions to be given in respect of it.
52 Turning to the first proposition, it may be accepted that 78 is a substantial number of counts. However, the jurors will presumably each be given their own copy of the indictment, so that they can follow the evidence as it is being led. They will presumably be permitted to have writing materials so that they can note on the indictment, or elsewhere, the direct evidence relating to each count.
53 The jury will no doubt be told that they cannot reason from the fact that they conclude that the respondent has committed one or more offences, if they find that to be the case, to the conclusion that he has therefore committed other offences. That is, they will be told that just because they find (if they do so find) that the respondent is the sort of person who behaves in that way, does not necessarily mean that he has behaved in that way on any particular occasion. Further, they will no doubt be told that the fact that he has offended against one complainant is not, of itself, evidence that he has offended against another complainant, either in the same way or in a different way.
54 It will be for the trial Judge to determine, having regard to the way in which the trial is conducted, whether it is appropriate in relation to each count to summarise not only the direct evidence as to its occurrence, but also to summarise all of the other evidence which may have a bearing on the issues which I have identified, to the extent that those issues arise in relation to that count. Alternatively, the trial Judge may choose to deal with the question of the admissibility of evidence of one count in relation
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- to other counts on a broader basis. The trial Judge would be able, depending upon the evidence as it emerged at trial, to identify the issues to which aspects of the evidence relating to other counts may be relevant. For example, the Judge could explain that, in relation to BPG, RLM, LFB and LKH as a young girl, a jury might wonder whether each girl, in relation to any individual count, had accurately recalled the events, or whether imagination or fantasy might have played a part. The Judge could then identify counts in which there was identity of terminology, such as the "typewriter", or "squashes" (not confined to those complainants), or descriptions of identical or very similar conduct, and explain that it was for the collective experience and wisdom of the jury to determine whether they were satisfied that, in those circumstances, they could rule out any possibility of poor memory or imagination in respect of any count or counts which might raise that issue. Other issues could be similarly identified and the relevance of evidence of other acts to those issues explained. Once the relevance of evidence of other acts has been explained, so that the jury understand how such evidence may be used, it seems to me that it can be assumed that the jury will avoid reasoning in a way which they will be expressly told is impermissible.
55 Although it will of course require a meticulous review of the evidence as it emerges at trial, no doubt assisted by detailed submissions from both counsel, a task of the type which I have described above does not seem to me to be a task of insurmountable difficulty for a trial Judge to perform, or for a jury to be able to understand.
56 Further, even if the task is of some complexity, as I have noted, the "cure" of severance of the indictment in this case would not, in truth, eliminate, or even much reduce, the task faced by both the Judge and the jury. That is because of the very substantial quantity of uncharged act evidence which would, in any event, be admissible in respect of a trial in relation to any of these counts, into however many indictments they may be severed.
Conclusion
57 In my view, her Honour was in error in ordering severance of the indictment. I would quash that order, and in lieu thereof I would sever only count 78, dealing with MLN. As I have noted, on the materials before us, the evidence in relation to that count does not at present appear to be admissible in respect of any other count. Further, because of what is at least arguably the overreaction of LKH's mother which it displays, it has the potential to give rise to prejudicial speculation about her state of
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- knowledge, or her belief, about the respondent's conduct toward LKH's friends generally. That order should not be understood as being anything in the nature of a final ruling upon the admissibility of evidence in relation to that count for all purposes, since, as I have earlier noted, it is conceivable that evidence of that count could ultimately be admissible, depending upon the course which the trial takes.
58 BUSS JA: I agree with Wheeler JA.
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