The State of Western Australia v GJB
[2020] WADC 147
•24 NOVEMBER 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GJB [2020] WADC 147
CORAM: BOWDEN DCJ
HEARD: ON THE PAPERS
DELIVERED : 24 NOVEMBER 2020
FILE NO/S: IND 95 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
GJB
Catchwords:
Criminal law - Section 31A Evidence Act 1906 (WA) - Admissibility of propensity evidence
Legislation:
Evidence Act 1906 (WA)
Result:
Propensity evidence inadmissible
Representation:
Counsel:
| The State of Western Australia | : | No appearance |
| Accused | : | No appearance |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Max Crispe Barrister & Solicitor |
Case(s) referred to in decision(s):
Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846
RMD v The State of Western Australia [2017] WASCA 70
The State of Western Australia v Jackson [2019] WASCA 118
BOWDEN DCJ:
The accused is charged with 15 sexual offences allegedly committed against his two biological daughters between November 1977 and June 1980.
Counts 1 - 12 relate to KB and counts 13 - 15 relate to KLB.
At the time of the alleged offending KB was aged between 4 and 7 and KLB aged between 4 and 5.
Count 1 alleges KB and the accused were at a bus depot in Albany. The accused at that stage was a bus driver and they were waiting to pick up football players after a match. Whilst on the back seat of the bus the accused attempted to penetrate KB's vagina with his penis. He did not succeed and then masturbated himself to ejaculation.
Count 2 occurred when KB and her father were on a double bed naked in a hotel in Perth and the accused tried to penetrate KB's vagina with his penis. Count 3 occurred shortly thereafter when the accused penetrated KB with his fingers then masturbated and ejaculated onto her stomach.
Count 4 occurred after the accused and his wife had separated and KB was visiting on school holidays. The accused told KB and KLB to take their clothes off and laid both girls side by side on the concrete laundry floor and inserted a ballpoint pen into KB's vagina and inserted a different pen into KLB's vagina whilst he was masturbating.
Count 5 occurred the following night when the accused allegedly penetrated each of KB and KLB's vaginas with a pen and masturbated as he did so.
Count 6 occurred the night following count 5, when the accused allegedly penetrated each of KB and KLB's vaginas with a pen.
Count 7 occurred on an occasion when KB was being reprimanded for misbehaviour and the accused was discussing the incident with her. He took off all his clothes and he lay KB down and attempted to penetrate her vagina with his penis. Count 8 occurred when shortly after that he penetrated her vagina with a black marker, thereafter, count 9 occurred when he inserted his penis into her mouth and ejaculated.
Count 10 occurred on another occasion when the accused inserted a pen into KB's vagina whilst doing the same to KLB. Count 11 occurred shortly thereafter when the accused attempted to penetrate KB's vagina with his penis.
Count 12 occurred when KB's mother arrived to collect the two girls from their father. The mother had gone grocery shopping and, while she was away, the accused penetrated KB's mouth with his penis.
Count 13 relates to the occasion when the accused inserted a ballpoint pen into KLB's vagina at the same time as he inserted a ballpoint pen into KB's vagina (count 4).
Count 14 occurred the following night when the accused inserted a pen into KLB's vagina whilst doing the same to KB's vagina (count 5).
Count 15 occurred the following night when again the accused inserted a ballpoint pen into KLB's vagina whilst inserting a ballpoint pen into KB's vagina (count 6).
The evidence sought to be led
The State seek to lead evidence from JD who is the accused's niece.
Her evidence relates to two alleged incidents involving the accused.
JD says the first incident occurred when the accused was younger than 20 years of age and at the grandparents' house in Capel.
JD says she and the accused were at a creek looking for Gilgies and:
the accused told me to take my pants and underwear off and wade through the water to look for Gilgies. I said I did not want to but he persisted. I did not feel comfortable. I don't know how many times he said to me to take them off, but it was more than once and he was trying to coax me into it.
(the Gilgie incident)
It is not clear whether JD removed her underwear.
The second incident JD refers to occurred at her family home when she says the accused was giving her a piggy back. She was wearing either a dress or skirt at the time and he used his fingers and touched her vagina and vulva area (the Piggy Back incident).
JD says that from the way the accused moved his fingers it was a deliberate act. That is inadmissible opinion evidence.
The accused has not been charged with any offences relating to these two incidents and they occurred about seven years before the accused allegedly began sexually molesting his daughters and nine years before the first of the charged acts.
The purpose for which the evidence is led
The State seek to lead this evidence to show the accused has a sexual interest in pre-pubescent girls to whom he is related and a willingness to act upon that interest when the opportunity arose.
Section 31A Evidence Act
Section 31A of the Evidence Act1906 (WA) reads:
(1)In this section -
propensity evidence means -
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
Is the proposed evidence propensity evidence?
Propensity evidence has a broad connotation. It includes evidence of the conduct of the accused person and evidence of a tendency that the accused person has or had.
The word 'conduct' refers to the manner in which an accused person behaves or had behaved. The word 'tendency' refers to an inclination or disposition or a pre-disposition an accused has.
The evidence is clearly propensity evidence.[1]
[1] The State of Western Australia v Jackson [2019] WASCA 118.
Significant probative value
The principles relating to whether proposed evidence has significant probative value were recently summarised in RMD v The State of Western Australia.[2]
[2] RMD v The State of Western Australia [2017] WASCA 70 [43] - [52].
Briefly, they can be summarised as follows:
1.The evidence is to be taken at its highest from the prosecution's point of view.
2.The evidence is not to be considered in isolation but to be considered with other evidence.
3.To have significant probative value the court must reach a conclusion that the propensity evidence would, as succinct 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.
4.Significant in this context means evidence of importance or of consequence.
5.Whether the probative value of the proposed propensity evidence is significant depends upon the nature of the fact in issue to which it is relevant and the significance or importance to which the proposed propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
6.If the proposed propensity evidence is at a high level of generality, that 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 proposed propensity evidence will have significant probative value.
7.The nature and extent of any similarity between the conduct the subject of the proposed propensity evidence and the conduct the subject of the offences on the indictment is relevant to whether the evidence has significant probative value.
8.In making an assessment of the probative value of the proposed propensity evidence, the court must determine the extent to which the evidence is capable of proving the propensity and whether the proof of that propensity increases the likelihood of the commission of the offence which, in turn, requires the identification of the purpose for which the proposed propensity evidence is admitted.
9.Even where propensity evidence is identified at a high level of generality it is necessary to examine the proposed propensity evidence in detail to determine whether, by itself or having regard to other evidence, it still can properly be characterised as having significant probative value.
The State submissions
The State's submission is that the accused has a tendency to have a sexual interest in pre-pubescent girls to whom he is related and a willingness to act on that when the opportunity arises.
The State argue that the jury is entitled to use that finding as circumstantial evidence when considering the likelihood that the accused did the sexual acts alleged by the complainant.
The State points out that both the charges on the indictment and the proposed propensity evidence relates to sexual acts committed against pre-pubescent females who are related to the accused.
The defence submissions
The defence concede that the evidence is propensity evidence but say that the nature of the acts is so different that it deprives the proposed propensity evidence of significant probative value and therefore it be ruled inadmissible.
The defence also point to the length of delay between the alleged events the subject of the propensity application and the charged offences, the fact that the charged offences involved actual penetration or attempts to penetrate and were often committed in the presence of another victim and in many cases involved simultaneous offending against two victims and the use of objects to achieve penetration.
Conclusion
Evidence that the accused has committed a sexual offence against one person proves no more about the alleged offence against another than that the accused has committed a sexual offence against the first person.
The mere fact that an accused has committed an offence against one person is ordinarily not significantly probative as to whether the accused committed an offence against another person.
If, however, there is some common feature of or about the offending it may demonstrate a tendency to act in a particular way proof of which increases the likelihood the accused committed the offence under consideration.
It is clear that the mere fact that an accused has a sexual interest in persons in the same class as the complainant ie, underage pre-pubescent girls who are related to him, is not usually of significant probative value in determining whether the complainant's account of the accused's conduct is true. It is a tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value.
Even where the sexual interest is manifest in offending against multiple complainants something more, a linking or common feature between the offending is required before the evidence can be said to have significant probative value. There must be some feature about the offending which links the proposed propensity evidence with the offending.[3]
[3] R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846; McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045; The State of Western Australia v Jackson.
In this case there is no linking feature between the proposed propensity evidence and the alleged offending.
The alleged offending involves sexual penetration or attempts at sexual penetration. The Gilgie incident and the Piggy Back incident do not involve efforts at penetration. The nature of both instances is uniquely different. In the Gilgie incident the child is asked to remove her underwear in circumstances where she was wading through water. In the Piggy Back incident, the accused was allegedly giving a piggy back when he is alleged to have touched the vagina.
In my view whilst the evidence may have probative value it does not have significant probative value.
There is not a sufficient link in the nature of the physical acts in the Gilgie and Piggy Back incidents and the charged offences. Indeed, in the Gilgie incident it is not apparent that JD was physically touched as opposed to being asked to remove her underwear. The Piggy Back incident involved an activity whereby an innocent touching could be misconstrued.
The circumstance in which the alleged offences occurred are quite different. The charged offences are overtly sexual acts of the accused penetrating or attempting to penetrate the vagina or mouth of the complainants. In many of the charged acts, the two complainants were abused at the same time and in the presence of each other and an object was used during the abuse. The time gap between the proposed propensity evidence and the charged acts was significant. A significant time gap does not always lead to the proposed propensity evidence lacking significant probative value however, it is a factor to consider.
There is not a sufficient degree of similarity of the acts involving the proposed propensity evidence and the charged acts which make it logically significant that those acts prove the tendency alleged by the State.[4]
[4] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338.
Due to the different nature of the acts, the circumstances in which they occurred and the time gap, I am not satisfied that the proposed evidence taken at its highest for the State has significant probative value. Therefore, I rule it inadmissible.
The necessary consequence of that ruling is that the evidence of JB and WB is inadmissible.
As I understand the submissions from the accused it is not in issue that the evidence of each of the complainants is admissible propensity evidence in relation to all other counts on the indictment. If my understanding is incorrect, a further directions hearing before me can be arranged.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AO
Associate to Judge Bowden
24 NOVEMBER 2020
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