The State of Western Australia v H - [2023] WADC 149

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- H [2023] WADC 149
CORAM:   BOWDEN DCJ
HEARD:   24 & 30 NOVEMBER 2023
DELIVERED          :   11 DECEMBER 2023
PUBLISHED           :   9 APRIL 2024
FILE NO/S:   IND 43 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
AND

H

Catchwords:

Leave to disclose protective communication - Part of communication not confidential - Leave not required - Leave granted to disclose balance of communication subject to normal rules of admissibility - Evidence Act 1906 (WA) s 19A - s 19M

Legislation:

Evidence Act 1906 (WA), s 19A - s 19M, s 21, s 36BC

Result:

Leave to disclose protective communications

Leave not required to cross-examine complainant however cross-examination prohibited on some matters due to relevance

Representation:

Counsel:

The State of Western Australia	:	Ms F M Clare
Accused	:	Mr T M Petherick

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Petherick Cottrell Lawyers

Case(s) referred to in decision(s):

Akkerman v The State of Western Australia [2021] WASCA 51
BG v The Queen (2010) A Crim R 34; (2010) NSWCCA 301
BGH v The State of Western Australia [2020] WASCA 124
Bolton [2007] WASCA 277
Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443
CB v The State of Western Australia [2006] WASCA 227
CGS v The State of Western Australia [2009] WASCA 208
Clay v The State of Western Australia [2023] WASCA77
Drago v The Queen (1992) 8 WAR 488
HAR v The State of Western Australia [No 2] [2015] WASCA 249
HCP v The State of Western Australia [2019] WASCA 38
Hickey v The Queen [2004] WASCA 263
Hill v The Queen [2003] WASCA 177
JJU -v- The State of Western Australia [2013] WASCA 264
Johnson v Ramsden [2019] WASC 84
MJH v The State of Western Australia [2006] WASCA 167; (2006) 33 WAR 9
Narkle v The Queen (2001) 23 WAR 468
Phillips v The Queen (2006) 225 CLR 303
R v Harkin (1989) 38 A Crim R 296
R v Jones [2011] QCA 19; (2011) 209 A Crim R 379
R v Stergiou [2004] WASC 172
VOT v The State of Western Australia [2008] WASCA 102

BOWDEN DCJ:

The indictment

Mr H is charged on indictment 43 of 2023 alleging that:
1.On or about 1 January 2022 at Greenfields he indecently dealt with EJK, a child of or over the age of 13 years and under the age of 16 years by touching her breasts.
2.On or about 1 January 2022 at Greenfields he indecently dealt with EJK, a child of or over the age of 13 years and under the age of 16 years by touching her nipple.
The complainant in both counts is Mr H's de facto granddaughter.

The allegations

In relation to count 1 it is alleged that Mr H hugged the complainant from behind at a family gathering, moved his arms up until his hand was on her breast saying, 'is that your boob that feels great by the way'.
Later in the evening when EJK and Mr H were on a couch patting a dog it is alleged Mr H started stroking EJK's leg, then stopped patting the dog, rubbed her inner thigh then traced his hand up her side, continuing up the side of her torso before circling around her nipple (count 2). This continued for between 5 to 10 minutes and he is alleged to have repeated the sequence in the same order a second time.
Sometime later EJK's aunty dropped EJK home and EJK sent a message to an ex‑boyfriend via Snapchat exposing the offending, then called the Kids Helpline.
The police obtained the Kids Helpline call, which was recorded, and seek leave to adduce that call as evidence.

The State's application

The State apply for orders that:
1.The State be permitted to maintain disclosure of the protected communication made by EJK to the Kids Helpline on 1 January 2022.
2.EJK's call to Kids Helpline on 1 January 2022 be admitted into evidence as part of the evidence of EJK.
The application is supported by the affidavit of Ms Milligan affirmed on 21 November 2023.
The State seek to lead that call as evidence of recent complaint and EJK's distress.
The State say that the audio call to the Kids Helpline should not have been disclosed without leave as it is a protected communication within s 19 C of the Evidence Act 1906 (WA) (the Evidence Act). It was however disclosed and accordingly the State now seeks leave to disclose the recording and the associated counselling notes and adduce the audio as evidence in the upcoming trial.
The State's application to be determined in accordance with the statutory scheme established by s 19A - s 19M of the Evidence Act relating to protected communications.
In simple terms, that requires the State to:
1.establish a prima facie case that they have a legitimate forensic purpose for having leave to disclose the protected communication (s 19C(4));
2.if, and only if, this is answered in the affirmative to establish the statutory condition precedents referred to in s 19E(1)(a) (legitimate forensic purpose ) and (b) (evidence not otherwise available );
3.if, and only if, both statutory condition precedents are met to establish that it is in the public interest to grant leave to disclose the protected communication (s 19G).

Protected communications within s 19 of the Evidence Act

Section 19A(a) defines a protected communication, inter alia, as a counselling communication made by, to or about a complainant 'made in confidence'.
Section 19A(a) defines a counselling communication, inter alia, to include a communication made in confidence by a person in respect of whom a sexual assault was committed or is alleged to have been committed to another person who is counselling the complainant in relation to any harm the complainant may have suffered.

The Kids Helpline call

The Kids Helpline call (the relevant communication) can be divided into two parts.
The earlier part of the call (first 10 pages of the transcript of the call) and the later part of the call (page 11 and onwards of the transcript of the call).
This is because during the course of the call (at transcript page 10), EJK is advised.
You know, we have to report stuff if somebody tells us things because you know we've got a duty of care which means we need you to be safe, we want you to be safe and we are legally required to do it as well because the government wants you to be safe too and that includes reporting sexual assaults.
OK? In fact it's a crime not to report it.

The later part of the call

From the time EJK is advised and understands that her complaint is going to be reported to others, the call cannot in my view fall within the definition of a protected communication because it is, from that point onwards, not a communication made in confidence.
Accordingly, subject to the normal rules of relevance and admissibility, leave is not required to adduce the contents of the later part of the call.
If the basis for the admissibility of the call is as evidence of distress/recent complaint, the parties will need to consider the numerous comments and opinions expressed by the counsellor and the edits to be made to the call. The parties advised the court at the directions hearing that this was being done.

The earlier part of the call

I now turn to consider the earlier part of the call.
I am satisfied the earlier part of the call is a counselling communication as it was a communication made in confidence by EJK in respect of whom a sexual assault is alleged to have been committed to another person who is counselling her in relation to any harm she may have suffered.
Further, I am satisfied that the earlier part of the call is a protected communication being a communication made by EJK.
Accordingly, pursuant to s 19C the protected communication is not to be disclosed in criminal proceedings except with leave of the court. Without leave being granted s 19K would rule that evidence inadmissible.

Have the DPP established a prima facie case that they have a legitimate forensic purpose for having leave to disclose the protected communication as required by s 19C(4)?

Her Honour the Chief Judge having considered a previous affidavit of Ms Mulligan was satisfied that a prima facie case had been established that the Department of Public Prosecutions [DPP] had a legitimate forensic purpose for having leave to disclose the protected communication as required by s 19C(4) and accordingly, a date was fixed for the hearing of this application and notification was given to the parent or guardian of EJK and Mr RJ, the counsellor involved from Kids Helpline as required by s 19C (4).

The leave application

As EJK is a child, she is not able to consent to the disclosure (s 19H) and the State's leave application is to be determined pursuant to s 19E.

The statutory condition precedents - s 19E(1)(a) and s 19E(1)(b)

Pursuant to s 19E(1), the DPP must satisfy the court that they have a legitimate forensic purpose for having leave to disclose the communication and that other evidence to the same effect as the protected communication or the contents of the document recording the protected communication is not available.
If the court is not satisfied of any one of those two statutory condition precedents, leave is to be refused: s 19E(1)(a)(b).
If both statutory condition precedents are established, the court is to determine the application for leave: s 19F(1).

I am satisfied that the DPP have a legitimate forensic purpose for having leave to disclose the communication. The legitimate forensic purpose being that the protected communication is capable of being evidence of recent complaint and distress condition of the complainant shortly after the alleged offences and therefore admissible evidence in the prosecution case.
I am satisfied that other evidence to the same effect as the protected communication or the contents of the document recording the protected communication is not available. Ms Mulligan's affidavit establishes that no statement has been obtained from the ex‑boyfriend, who EJK said in her child witness interview (CWI) she spoke to before the Kids Helpline call because he is a child who now resides in New Zealand.

The determination of the leave application - s 19G

Pursuant to s 19G the court may only grant leave to disclose a protected communication if the court determines that it is in the public interest to do so.
This requires the court to have regard to the following:
(a)The extent to which the disclosure of a protected communication is necessary to allow the applicant for leave to make a full defence.
This does not apply because the application for leave is made by the State.
(b)Whether the evidence of the protected communication will have substantial probative value.
Substantial in this context means evidence that is more than just relevant, it is evidence of significance or importance. The probative value being that its use as recent complaint is evidence capable of showing the consistency of EJK's conduct. Evidence of distress is capable of being evidence that could independently confirm or corroborate that the offending occurred or evidence capable of showing the consistency of EJK's conduct: Akkerman v The State of Western Australia [2021] WASCA 51. In an oath‑on‑oath case this is evidence of significance or importance and is evidence that has substantial probative value.
(c)The likelihood that the disclosure will affect the outcome of the proceedings.
There is a real prospect that in an oath-on-oath case this evidence would affect the outcome of the proceedings.
(d)The public interest in ensuring the complainant receives effective counselling and the extent to which the failure to preserve the confidentiality of protected communications may dissuade complainants from seeking counselling.
There is nothing to indicate that the disclosure of this communication in these circumstances would dissuade complainants from seeking counselling or diminish the effectiveness of counselling. On the contrary, when the complainant was told that what she said would be disclosed to others by way of mandatory reporting she expressed no concern and made further disclosures.

(e)The public interest in ensuring that adequate records are kept of counselling communications.
In this case the call was recorded and I infer that was standard practice for calls of this nature. That is a sensible practice and there is nothing to indicate that the disclosure of this communication would affect that practice.
(f)The likelihood that disclosure will cause harm to the complainant and the nature and extent of the harm.
There is nothing before me to indicate that disclosure will cause harm to the complainant and the nature and extent of that harm. When told that what she said would be disclosed to others by way of mandatory reporting the complainant expressed no concern and continued to disclose.
Further I note that the complainant repeated her allegations in the CWI in circumstances where she knew that the purpose of repeating those disclosures was to assist a prosecution.
(g)Any other matter that the court considers relevant.
A relevant consideration is that the State should be able to use all available relevant and admissible evidence in its case. The call is relevant and admissible (with the exception of the editing that I have referred to).

All the factors must be considered and having done so I am satisfied that it is in the public interest to grant leave to disclose the earlier part of the call.

The accused's application

By his application Mr H has applied for leave to cross‑examine EJK with respect to previous sexual experiences/complaint made by her against her father, pursuant to s 36BC(2)(a) and s 36(2)(b).
By his written submissions dated 21 November 2023 Mr H's application is cast in different terms. He seeks:
1.Leave to be granted to cross‑examine EJK of her sexual experience with her biological father, DK.
2.Leave to be granted to cross‑examine EJK with respect to a claim that she had falsely accused DK and that she has falsely accused Mr H.
By supplementary submissions of 30 November 2023, Mr H specifies that he wishes to cross‑examine EJK as follows:
2.1That her statement to police and others concerning her allegations against DK were false or at least grossly exaggerated as follows;
2.2That DK did not 'try to rape' her and was not 'probably going to rape' her.
2.3DK did not 'make [EJK] sit on his lap' and then kiss her on the lips.
2.4DK did not try to take EJK's shirt off.
2.5DK did not pick EJK up and make her wrap her legs around him, such that she did not get a choice.
2.6DK did not say 'wrap your legs around me'.
2.7EJK was not scared to say 'no'.
2.8EJK did not say 'what are you doing' to which DK responded 'nothing'.
2.9an amended ninth area of cross‑examination was abandoned at the directions hearing.
EJK statements are not evidence of the truth of the contents of the statement. As can be seen by the particulars, the intent of the cross‑examination is not to establish just whether EJK made the statements, but to establish that the statements made were not true and doing so necessarily involves aspects of the contact between EJK and DK.

The law

Section 36BC(1) of the Evidence Act provides that in proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person not being part of the res gestae of the proceedings shall not be adduced or elicited by or on behalf of the accused unless leave of the court has first been obtained on an application made in the absence of the jury.
Section 36BC(2) provides that the court shall not grant leave unless satisfied that:
(a)what is sought to be adduced or elicited has substantial relevance to the facts in issue; and
(b)the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.

The evidentiary basis for the application

In September 2020, EJK made complaints about her father's conduct.
She participated in a CWI on 14 September 2020 as a result of which two charges were laid against her father (DK).
When asked at the commencement of the CWI what she was there to talk about she replied 'Um, my dad I think tried to rape me'. She is then asked to describe what occurred and does. The first charge against DK was a result of EJK telling the officers that when she was in her parents' bed watching TV her father wanted to crack her back and told her to lay on top of him which she did. He put his hand on her bottom and squeezed it. She said, 'do not do that'. He replied, 'why?' She responded, 'cos it's just weird'.
The second charge against DK was a result of EJK telling the officers that her father came into her room in September 2020, got into her bed, started hugging her, gave her a soft kiss on the cheek, laid her on her stomach, took the back of her shirt off and started rubbing her back, picked her up and sat her on his lap and kissed her on the lips softly and gently, then put his hand under the back of her shirt and rubbed her back up and down. She said he was grabbing her shirt and tried to pull it. When she asked what he was doing he replied nothing and immediately pulled the shirt down. He then made her wrap her legs around him and carried her out to the lounge by holding her by her sides, put her down and said I love you.
She said she thought he was probably going to rape her because he is never lovey dovey or anything like that.

The Kids Helpline call

During the Kids Helpline call EJK referred to these incidents saying that 'stuff happened' with her father with whom 'she didn't have a good relationship'.
She told the counsellor:
I thought that he'd tried to do things, but I guess he didn't …
I thought that he was trying to do that but he was just trying to be closer with me because we lost my brother a while ago, they wanted to try for another one but my mum said um she wasn't going to do it and me and my dad were closer and he was getting me out of bed and he tried to cuddle me and he never, didn't really touch me so I was just really weirded out, but it was just cuddles, and well, um, cuddles is OK.
It's just he's never been a touchy person, he only like had a good relationship when I was like young because he's never really had, um, any like sisters or any interactions with like female family members.
Later she described her father's hands as 'being just around her waist, just like a normal hug'.
She said that she told her mum, and they got the police involved and it ended up with her 'backing out'.

The discontinuance of the charges against DK

Court records show that DK was charged with two offences of indecently dealing with a child who to his knowledge was a lineal relative allegedly occurring on the 10 and 11 September 2020.

The State say that on 16 October 2020 DK wrote to the prosecution. In essence, the letter disclosed that on 25 October 2019 [sic] his wife gave birth to a son who tragically died on 13 September 2019.
DK claimed the associated trauma caused him to drift apart from his family. He sought counselling and was told of the importance of reconnecting with his daughter EJK and to show more physical love to her.
In DK's letter dated 16 October 20 he said he felt he was in a place to show some affection and take the first steps towards mending the fractured relationship with his daughter. In relation to the incidents, he says he went into the bedroom in an attempt to be nice and show affection. He said it was two days before the anniversary of the death of his son (the complainant's brother). He went into the room, sat down on the bed and rubbed EJK's shoulders gently. He was asked to scratch her back which he did. Her shirt was no more than half-way up her back. He told her to get ready for school. She asked him to carry her. She sat up. He dragged her onto his lap so she was sitting sideways. She spun and put her legs down by his side and hugged him and put her head on his shoulders. He gave her back a rub. He felt his hand inadvertently on the skin of her back. He stopped and pulled his hands away. Her shirt fell back down. EJK said 'you lifted my shirt' to which he responded, 'I didn't mean to'. He lifted her head off his shoulder and gave her a 'peck on the lips'. He said he stood up and carried her down the hallway, put her on the lounge and told her to get some breakfast.

In relation the other incident, DK said he, his wife and EJK were in the bed for family cuddles. EJK asked him to 'crack' her back. He did so. EJK hugged him, he then gave her left 'bum cheek' a quick pinch with his right hand as a signal for her to get off him. She rolled off him and said 'don't pinch my bum'. He asked, 'why not' and she replied 'cause' then shortly after that continued to hug her. He denied that there was any sexual motivation for his conduct and requested that the prosecution reconsider their position.
As can be seen, DK admitted physical contact with EJK as outlined above in relation to both incidents.
The prosecution was discontinued, at the committal stage, on 25 May 2021 and accordingly dismissed for want of prosecution.
The DPP say they discontinued the charge in relation to the first incident because the conduct could not objectively be seen to be truly sexual in nature and there was a reasonable alternate inference that there was no sexual motivation behind the conduct and a jury could have reasonable doubt both as to whether the acts alleged were deliberate and whether the conduct was indecent.
In relation to the second incident, the DPP say they discontinued the charge as EJK was reluctant to give evidence and DK had provided an explanation in his letter and they determined there were no reasonable prospects of conviction.
In summary the State say EJK's allegations were not false, and the charges were discontinued not on the basis that they were false allegations but on the basis that there were no reasonable prospects of conviction.
It is trite to observe that EJK does not decide the nature of the charges. She tells the police what she says occurred and they decide which charge to lay.

Determination

Leave is not required under s 36BC to cross‑examine a complainant about making a false or any complaint of sexual abuse on another occasion because such evidence is not being led to show the complaint is true. Leave is not required to cross‑examine EJK that she made a false complaint against DK or Mr H. The mere complaint of sexual abuse by another does not tend to prove a sexual experience because evidence of complaint is not evidence of the truth of what is complained about: CGS v The State of Western Australia [2009] WASCA 208; VOT v The State of Western Australia [2008] WASCA 102; HAR v The State of Western Australia[No 2] [2015] WASCA 249; BGH v The State of Western Australia [2020] WASCA 124.
Even if leave is not required such cross‑examination could only occur if it has relevance to the fact in issue, a fact relevant to a fact in issue or the complainant's credibility.

Sexual experiences

The first issue is whether the acts, or any of them forming the basis of the charges against DK constitute sexual experiences of EJK within s 36BC. The State say they do, the defence say they do not.
In Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 McHugh, Gummow and Hayne JJ said the phrase 'relating to sexual experience' means any evidence that tends to prove sexual experience of a complainant and may be wide enough to cover evidence that only incidentally refers to sexual experience. It was also suggested that the phrase did not cover a complainant witnessing sexual activity of others so long as it is not suggested that the complainant was involved in such activity: R v Stergiou [2004] WASC 172.
The sexual experiences of a complainant with another person include experiences as a victim of sexual assault (Hill v The Queen [2003] WASCA 177) and can include conversations in which one person describes sexual activities to sexually stimulate the other person.
Many of the cases dealing with what constitutes a complainant's sexual experience deal with activities other than physical contact with the complainant, eg Hickey v The Queen [2004] WASCA 263 in which the complainant was overheard by the accused saying to another person on the telephone 'come over and fuck me'. It was held not to be evidence of the complainant's sexual experience. In HCP v The State of Western Australia [2019] WASCA 38 a young complainant had asked some young boys to put fingers in their own bottoms. Neither her request nor the school report detailing it were found to be evidence of the complainant's sexual experience. Buss P held that the incident was not a 'sexual experience' of or in relation to the complainant as the complainant did not sexually penetrate or deal with any of the other children and none of the other children sexually penetrated or dealt with the complainant, and said the incident did not relate to the complainant's sexual experience specifically or generally. Beech JA said there was nothing in the school report that was a sexual experience or could bear in any way upon the complainant's, sexual experience. Mazza JA agreed with Buss P and Beech JA.
In Bolton [2007] WASCA 277 Steytler P said it is not clear whether the words 'sexual experiences' include only physical experience or include experiences with sexual overtones or sexual characteristics which are not physical. His Honour said that describing a sex act performed by others to just inform another person of what was seen without a sexual motive would not be a sexual experience however, if the description was given to sexually stimulate the other person it may be a sexual experience.
In BG v The Queen (2010) A Crim R 34; (2010) NSWCCA 301, dealing with the New South Wales section which is in different terms, James J with whom Hislop J and Price J agreed said that sexual experience is not limited to actual sexual activity and the phrase encompasses a complainant being watched in the shower and observing another person expose their penis.
In my view the words 'sexual experiences' cover actual physical sexual experiences of a complainant but are not limited to actual physical sexual experiences.
The State say that the physical acts experienced by EJK during the course of the conduct constituting the discontinued charges are sexual experiences of EJK because she interpreted them as sexual experiences as is evidenced by the making of the complaint.
I reject this submission. It is too wide in its ambit. It is not the subjective belief of a complainant that gives acts the characteristics of being sexual experiences of a complainant.
In this case there was actual physical contact between EJK and DK albeit the extent of that contact was disputed. My remarks relate only to such cases. To constitute sexual experiences, the physical contact must be contact which objectively viewed are experiences that have a sexual characteristic to them. In some cases the physical contact will have an inherent sexual character or connotation due to the intimate part of the body touched (breasts, vagina, penis, testicles, anus) and therefore constitute sexual experiences. In other cases the sexual character or connotation of the physical contact will be found due to the circumstances in which the acts took place including the nature and location of the touch and the context and circumstances and or the motivation, intent or purpose of the actor which may permit the inference to be drawn that there is a sexual character or connotation accompanying those acts. Only when those circumstances are found and the inference is drawn, can they be said to be sexual experiences of a complainant. In this regard, cases relating to indecent dealings, particularly Drago v The Queen (1992) 8 WAR 488; R v Harkin (1989) 38 A Crim R 296; R v Jones [2011] QCA 19; (2011) 209 A Crim R 379; and Johnson v Ramsden [2019] WASC 84, are analogous.
EJK's thoughts that DK 'tried to rape her' or he was going to rape her because 'he's never been lovey dovey or anything like that' are not sexual experiences. These are not words by which she seeks to sexually stimulate others or herself but merely a narrative of her thoughts.
I find that the physical contact disclosed in the two discontinued charges against DK objectively viewed do not have an inherent sexual character or connotation and are not properly characterised as sexual experiences and therefore do not constitute evidence of sexual experiences of EJK.
In this regard it does not matter whether the physical acts are those which DK admits (in his letter to the prosecution) referred to in pars 53 and 54 or those that EJK alleges referred to in pars 43 and 44. None of those physical acts either individually or collectively have a sexual character or connotation, inherently or otherwise, and are not therefore sexual experience of EJK.
As a matter of law DK's physical acts could, due to the circumstances in which the acts took place including the nature and location of the touch and the context and circumstances and or the motivation, intent or purpose of DK, constitute a sexual experience of EJK if for example, a conviction for indecent dealing had been suffered by DK as a result of the allegations. However, in the absence of a jury objectively having determined that those acts had a sexual character or connotation the acts by themselves do not have an inherent sexual character or connotation and are not therefore sexual experience of EJK.
Accordingly, the leave of the court is not required to cross-examine EJK, however, cross-examination could only occur on those matters if they were otherwise relevant to a fact in issue, a fact relevant to a fact in issue or EJK's credibility.
If contrary to my finding DK's acts towards EJK were EJK's sexual experiences, leave is required and can only be given if the evidence has 'substantial relevance to the fact in issue'.

The issue of relevance

For evidence to be relevant and therefore admissible it must be evidence that could rationally affect directly or indirectly the assessment of the probability of the existence of a fact in issue (or a fact relevant to a fact in issue) in the proceedings: Phillips v The Queen (2006) 225 CLR 303.
What is relevant to a fact in issue must be considered in light of both the prosecution and defence cases. The defence are entitled to of course put the prosecution to proof, and also entitled to run a positive defence case.
The discontinued charges involving DK relate to, on the complainant's evidence (assuming for the purposes of this judgment that what she said in the CWI is true), DK's conduct in squeezing her bottom, kissing her on the cheek, pulling her shirt up to enable her back to be rubbed, being sat on her father's lap, being kissed on her lips, having a hand put under her shirt and her back rubbed up and down, being picked up and made to wrap her legs around DK and then being carried to another room with her legs wrapped around his waist.
DK admits in his letter that his conduct involved the acts referred to at pars 53 and 54.
I have found that none of the physical acts either individually or collectively have a sexual character or connotation, inherently or otherwise, and are not sexual experience of EJK.
The allegations confronting Mr H on this indictment are that in count 1, he intentionally touched EJK on the breast and in count 2 intentionally ran his finger in a circle around her nipple. The indecency in each case is established by the very nature of the act and location of the touch and is not dependent on the circumstances or motivation of the actor, Mr H.
In the indictable offences one of the two crucial issues is whether the acts allegedly performed by Mr H occurred. The physical acts of DK towards EJK whether they are classified as sexual experience of EJK or not are not in any way probative towards the issue of whether the incident involving Mr H touching EJK's breast (count 1) or running his hand around her nipple (count 2) occurred. The admitted and disputed physical contact between DK and EJK related to touching on parts of her body that were not inherently sexual (buttocks, consistent with Johnson v Ramsden (Smith J) and authorities cited therein, are not inherently sexual). The fact that DK touched those inherently non‑sexual parts of EJK's body is not probative of whether Mr H has touched either EJK's breast or nipple. The fact that DK had intentional physical contact with EJK does not rationally affect directly or indirectly the assessment of the probability of whether Mr H had intentional physical contact with EJK.

The other crucial issue is, if the jury are satisfied beyond reasonable doubt Mr H intentionally touched EJK as alleged, whether it is indecent. The determination of indecency is a matter for the jury to determine on an objective standard. Something is indecent if it is unbecoming or offensive to common standards of propriety or morality and has a sexual connotation. The fact that DK had intentional physical contact with EJK could not rationally affect directly or indirectly the assessment of the jury as to whether Mr H's touching of EJK was indecent.
A significant distinguishing feature is that DK admitted physical contact with EJK. Mr H denies the physical contact with EJK's breast or nipples. The evidence of what occurred with DK is not probative, let alone substantially relevant to whether Mr H touched EJK's breast and nipple as alleged and cannot be relevant to whether, if the jury are satisfied that touching did occur, the jury are satisfied that it was indecent.
The positive case that the defence wish to run is that EJK made false accusations or grossly exaggerated her allegations, against DK. In this regard a significant distinguishing feature is that DK admitted physical contact with EJK. DK agrees that some, but not all of that touching occurred, although he maintains it was not sexually motivated. The broad question that EJK made 'false accusations' or 'grossly exaggerated' without specificity would be unfair.
Establishing that EJK may have exaggerated the extent of the admitted physical contact between DK and herself which related to touching on parts of her body that were not inherently sexual (buttocks, consistent with Johnson v Ramsden (Smith J) and cases cited therein, it seems are not inherently sexual) is not probative of whether Mr H has touched inherently sexual parts of EJK's body being her breast or nipple . There is nothing in the materials which is capable of showing that EJK exaggerates a touching of a non-sexual area to include an inherently sexually area. That being so, establishing that EJK may have exaggerated the extent of the admitted physical contact between DK and herself is irrelevant to any matter in issue or in fact relevant to a fact in issue in this trial.
Evidence of the discontinued charges is not relevant to whether the acts of Mr H occurred. Any alleged misconstruing or exaggeration of the physical acts of DK is irrelevant to the issue of whether Mr H touched as alleged and if the jury accept the touching occurred, that touching was indecent. It cannot help the jury in determining whether Mr H intentionally touched EJK and if he did whether those touchings were indecent.
Obviously if the evidence has no probative value, it cannot have substantial relevance to the facts in issue as required by s 36BC(2)(a), being the higher requirement to be met if leave was required. In VOT v The State of Western Australia, Steytler P said that the evidence must carry substantial weight intending to prove or disapprove a fact in issue before it could be described as having substantial relevance. Heenan J said the evidence needed to be more than minor or of unsubstantial relevance and needed to be evidence that had the potential to affect findings on a crucial issue of fact. In JJU -v- The State of Western Australia [2013] WASCA 264 the Court of Appeal said that whether the evidence has substantial relevance to the facts in issue needs to be determined by considering the extent to which the evidence could make more or less likely a fact in issue.
Leaving questions of cross-examination as to credibility aside, irrespective of whether DK's acts towards EJK constitute sexual experiences of EJK or not, I would not permit the cross‑examination of EJK regarding the acts of DK on the grounds that it lacks relevance.
In relation to credibility and the defence's supplementary submissions detailing the questions they wish to ask, I observe the following:
2.2 That DK did not 'try to rape' her and was not 'probably going to rape' her.
The defence have slightly misconstrued EJK statement in the CWI. She told the police 'I think [he] tried to rape me' and 'I thought that he was probably going to rape me cos he's never been lovey dovey or anything like that'.
Any assessment of the CWI must involve a consideration of the whole of that CWI. To confine consideration to individual words or phrases removed from their context is apt to produce results that are misleading. It may be apparent that a phrase used by EJK in one place does not fairly represent what she was saying: Clay v The State of Western Australia [2023] WASCA77.
As a matter of law, in circumstances where EJK was asked to explain what occurred, her statements as to what she thought DK was doing or thought was going to happen in the future is not capable of constituting an allegation of rape
I would not permit EJK to be cross-examined on the basis that she made a false allegation of rape against DK. Whilst I accept that leave is not required to put such a question as a matter of law, her statements do not amount to an allegation of rape and the question would be unfair.
Whether EJK thought DK was raping her or was probably going to rape her is irrelevant to any issue in the trial.
The only legitimate forensic purpose of a cross‑examination in this area could be to establish that EJK lied to the police when she said, 'I think [DK] tried to rape me and I thought he was probably going to rape me'. If it was established that she had lied to the police it could potentially adversely affect her credit.
The defence would need EJK to accept that at the time of the CWI she did not honestly think that her father tried to rape her or did not think that he was probably going to rape her.
As these questions can only go to her credit under the collateral evidence rule, the accused would be bound by her answers.
I would permit the defence to cross-examine EJK and ask a) whether she made those remarks and b) whether at the time she made them she did not honestly think that he had tried to rape her or was probably going to rape her.
Proof that EJK made those remarks is not proof of the truth of what she said or thought, and the jury would need to be so instructed.
In relation to each of the proposed questions 3 - 8, they fall within three categories. The first is the issue of DK's physical acts, that is whether DK made EJK sit on his lap and kissed her on the lips, tried to take her shirt off, or made her wrap her legs around him without giving her a choice.
The second category is whether DK said, 'wrap your legs around me', or EJK said 'what are you doing' to which DK responded 'nothing'.
The third category is EJK's state of mind, that is whether she was too scared to say no to DK's leg wrap request.
I have already rejected the defence contention that establishing these matters supports the defence position that EJK exaggerated the extent of DK's physical contact and that in turn supports the inference that she has exaggerated the physical contact occurring between her and Mr H. The only relevance of such questions is as to EJK's credibility. Self-evidently her credibility could be impacted by a finding that she lied or misinformed the interviewer. By way of example only I would permit cross‑examination along the lines of - did you lie or falsely inform the interviewer when you said DK made you sit on his lap and then kissed you on the lips?
If EJK answers in the affirmative the defence have established a point that may impact on her credibility.
If she does not accept that she told a lie or misinformed the interviewer, as it is a question going only to her credit, the cross‑examiner is bound by her answers as a result of the collateral evidence rule.

If she replies that she cannot recall then she has not distinctly admitted making the statement and any previous statement giving details of the events under question would amount to a prior inconsistent statement under s 21 of the Evidence Act: CB v The State of Western Australia [2006] WASCA 227.
Section 21 is essentially a declaration of the common law position relating to prior inconsistent statements: MJH v The State of Western Australia [2006] WASCA 167; (2006) 33 WAR 9.
However, the admissibility of a prior inconsistent statement pursuant to s 21 is subject to a number of pre‑conditions one of which is that the prior statement must be relative to the subject matter of the proceedings. In MJH v The State of Western Australia Roberts‑Smith JA cited Narkle v The Queen (2001) 23 WAR 468 and said that the phrase meant relevant to the subject matter of the proceedings. Ultimately his Honour concluded that as long as the prior inconsistent statement was sufficiently closely related to the subject matter of the proceedings for justice to require investigation for the basis of the challenge to the complainant's testimony it was admissible [77]. McLure JA said s 21 required a prior inconsistent statement to be relevant although not admissible to prove a fact in issue or a fact relevant to a fact in issue. If the content of the statement only concerns matters going to credit, the statement would not be relevant to the subject matter of the proceedings. Buss JA, as he then was, said that the prior statement must be relevant to a fact in issue or a fact relevant to a fact in issue in the current proceedings and a statement meets that criteria if the prior statement and the fact in question are so related to each other that according to common course of events the prior statement, either taken by itself or in connection with other facts, could rationally affect directly or indirectly the assessment of the probability of the existence or non‑existence of a fact in issue.
As the prior statement in this case goes only to the complainant's credibility, s 21 would not permit the accused to establish the existence of the prior inconsistent statement if her evidence was that she could not recall.
Therefore I would permit EJK to be questioned as to whether she had told a lie or misinformed the interviewer that DK made her sit on his lap, kissed her on the lips, tried to take her shirt off, picked her up and wrapped her legs around him without giving her a choice. The cross‑examiner would be bound by her answers.
In relation to what EJK said and her state of mind I would not permit those questions as they have no relevance in my view to the facts in issue or to credibility.

I add for the sake of completeness that as DK's acts occurred in September 2020 and the charged incidents are alleged to have occurred in January 2022, it cannot be said that DK's acts if they are sexual experiences of EJK are part of the res gestae of the indictable offences and thus admissible.
As I have found the evidence relating to the discontinued charges lacks relevance, it is not necessary for me to consider s 36BC(2)(b) which provides that the court must consider whether the probative value of the evidence sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission. However, for the sake of completeness s 36BC(2)(b) is only to be considered if the evidence is found to have substantial relevance to the facts in issue. As I have found that the evidence does not have relevance, let alone substantial relevance, it would be artificial of me to consider this section because the answer to the question posed by this section would depend on exactly how the evidence was substantially relevant.
I recognise that any questioning relating to the discontinued charges will inevitably involve EJK being required to give evidence about a period of her life where her brother had only recently died and her father it appears had become emotionally distant to her as a result of the associated trauma. Although there is no direct evidence by way of a psychologist, social worker or witness support services report dealing with the issue, the distress to a young witness being required to recall the death of her brother and distressing incidents occurring at that time is readily apparent.
However, as I have said, the question in my view could only be answered bearing in mind the nature of the substantial relevance to a fact in issue and as I have found there is no relevance or substantial relevance to the facts in issue, it would be artificial of me to answer that question.
I add that as Heenan AJA identified in VOT v The State of Western Australia, this ruling can only be regarded as limited as it is based on the 'papers', and the significance of the point or of the evidence may be greatly changed by developments at the case so the ruling may need to be revisited if the potential relevance of the evidence changes.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KH
Associate
11 DECEMBER 2023