The State of Western Australia v Jackson
[2019] WADC 91
•5 JULY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- JACKSON [2019] WADC 91
CORAM: BOWDEN DCJ
HEARD: 21 MAY 2019
DELIVERED : 5 JULY 2019
FILE NO/S: IND 1778 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
PAUL RAYMOND JACKSON
Catchwords:
Nil
Legislation:
Evidence Act 1906 (WA)
Result:
State not permitted to lead propensity evidence
Severance application allowed
Representation:
Counsel:
| Applicant | : | Ms E J Noonan |
| Accused | : | Ms H E Prince |
Solicitors:
| Applicant | : | State Director of Public Prosecution |
| Accused | : | WA Criminal Law |
Case(s) referred to in decision(s):
Asplin v The State of Western Australia [2013] WASCA 72
DKA v The State of Western Australia [2017] WASCA 44
HTD v The State of Western Australia [No 2] [2019] WASCA 39
Mansell v The State of Western Australia [2009] WASCA 140
McPhillamy v The Queen [2018] HCA 52
Tasmania v Martin (No 2) (2011) 213 A Crim R 226
The State of Western Australia v Osborne [2007] WASCA 183
BOWDEN DCJ:
Mr Jackson is charged on indictment 1778 of 2018 with four offences as follows:
1.On 18 April 2018 at Hillarys he indecently dealt with SW, a child under the age of 13 years, by touching her on the buttocks.
2.On the same date and at the same place he indecently dealt with JW, a child under the age of 13 years, by touching her on the buttocks.
3.On 23 April 2018 at Mullaloo he had in his possession child exploitation material, namely a photograph on an Apple iPhone.
4.On or about 23 April 2018 at Mullaloo he used a carriage service to access child pornography material, namely photographs.
The trial is set for four days to commence on 19 August 2019.
The State's propensity application
The State's application of 2 January 2019 is that at the trial the evidence in respect of each count on the indictment is admissible under s 31 of the Evidence Act 1906 (WA), in the trial of each other count on the indictment as propensity evidence to demonstrate that in April 2018 the accused had a sexual interest in pre‑adolescent girls.
The defence's severance application
The defence application dated 8 May 2019 is for an order that counts 1 and 2 on the indictment be tried separately from counts 3 and 4 pursuant to s 133(3) of the Criminal Procedure Act 2004 (WA).
Some common ground
The State accept that if the evidence in relation to counts 3 and 4 is not admissible in relation to counts 1 and 2 there would be a real risk of impermissible prejudice to the accused if the four counts were tried together and the severance application should be granted. This concession is properly made.
The defence accept that if the evidence on counts 3 and 4 is admissible at the trial in relation to counts 1 and 2 then the counts are properly joined and their severance application should be dismissed. This concession is properly made.
Brief summary of the State's case in relation to counts 1 and 2
The State's case in relation to counts 1 and 2 is that the 12‑year‑old females JW, SW and LW were at a shopping centre.
The accused was shopping at a supermarket in that centre.
The …. entered the supermarket intending to purchase lollies. The accused was walking up and down the aisle. As he walked past the girls it is alleged he touched SW on the buttocks with the back of his hand. He then walked up and down the aisle again and as he passed the girls he touched JW on the buttocks with the back of his hand and then left the aisle.
A short time later the State alleged that the accused returned to the shopping aisle and walked past the girls whilst looking at LW. The girls faced their backs towards the outside of the aisle and SW and JW stood around LW to form a protective barrier around her.
The girls then left the aisle, went to the self‑service checkout and subsequently reported the incident to their mother.
When spoken to by police the accused admitted he saw the girls at the supermarket but denied that he had any physical contact with them.
Brief summary of the State's case in relation to counts 3 and 4
Five days after the alleged incident the subject of counts 1 and 2 the police arrested the accused and searched his residence. They located an Apple iPad and an Apple iPhone 4.
On the iPad was one image known as category 1 that is, showing a female child around about 10 to 12 years of age wearing a bikini and posing for the camera (count 3).
Count 4 relates to accessing eight images, again said to be category 1 child exploitation material depicting female children aged between 8 and 13 years of age. The images depict the female children wearing underwear or bikini bathers in a posing type photographs.
When spoken to by police the accused admitted using the iPad to access pornography and going to a site containing various images, including images of young girls. He admitted he had accessed images of young girls in bikinis in 'provocative poses'. He said he found the images intriguing, but denied having a sexual interest in children. He admitted deliberately accessing four of the eight images the subject of count 4 saying the other four images came up by accident. At the time the police seized his iPad, those four images were open in his 'Safari' browser.
Section 31A of the Evidence Act 1906 (WA)
31A.Propensity and relationship evidence
(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.
The proposed propensity evidence must be:
1.Propensity or relationship evidence.
2.Have significant probative value.
3.The probative value must be such that the public interest in adducing the evidence of guilt has the priority over the risk of an unfair trial.
Is the proposed evidence propensity evidence of the accused's conduct in relation to counts 3 and 4?
The definition of both propensity and relationship evidence is extraordinarily wide: Asplin v The State of Western Australia [2013] WASCA 72.
The conduct alleged in counts 3 and 4 are clearly evidence of the conduct of the accused and is propensity evidence. In addition it is evidence of an attitude or conduct of the accused person toward a class of persons, pre‑adolescent girls, over a period of time.
Does the evidence have significant probative value?
In determining whether the evidence has significant probative value the courts must look at the facts in issue, the purposes for which it is led and the significance or importance the evidence may have in establishing those facts. There is a need for logical nexus between the proposed evidence and the facts in issue: Tasmania v Martin (No 2) (2011) 213 A Crim R 226 [35].
In considering probative value, the evidence is to be taken at its highest from the prosecution's point of view.
In determining whether the propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Attention is to be directed to whether having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
The well‑established principles referred to in DKA v The State of Western Australia [2017] WASCA 44 show that:
(a)Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.
(b)The test in s 31A(2)(a) will be satisfied if the court 'considers' (that is, thinks) that the propensity evidence 'would' (as distinct 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.
(c)The adjective 'significant', in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence'.
(d)If propensity evidence has 'probative value' then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.
The defence submissions
The defence say that it is 'a long bow' to say that possession of child exploitation images of clothed girls, be it in bikini or underwear, which are viewed in the privacy of the accused's own home establishes a tendency to actually touch clothed children in a public space such as a shopping centre.
The defence rely on McPhillamy v The Queen [2018] HCA 52, in particular [27], [31], [35] and [36]:
27.Proof of the appellant's sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. The tendency on which the prosecution relied was to act on the appellant's sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was confined to 'B''s and 'C''s evidence of events that occurred in 1985. As Meagher JA noted, there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against 'A'.
…
31.Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. The suggested link in this case is the appellant's tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over 'A', an altar boy, when the two were at the Cathedral for services in 1995‑1996. The evidence does not suggest that 'A' was vulnerable in the way that 'B' and 'C' were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with 'A''s account that the appellant followed him into a public toilet and molested him.
…
35.As to the first matter – the extent to which the evidence supports the tendency – the jury were directed that the alleged tendency of the appellant was to act in a particular way that demonstrated 'a sexual interest in male children in their early teenage years who were under his supervision'. The evidence of 'B' and 'C' provided some support for the appellant having that tendency at the time of trial. It assisted to establish that the appellant had a state of mind involving a sexual interest in early teenage male children under his supervision and a willingness to act upon that state of mind. But that support was not strong. Unlike in Hughes, where the tendency evidence was also expressed in reasonably general terms, the evidence in this case was given only by two witnesses. Their evidence involved two incidents that occurred a decade before the date of the alleged offences against 'A'.
36.As to the second matter – the extent to which the tendency makes more likely the facts making up the charged offence – the tendency was expressed at a high level of generality. The reference to supervision was as a matter of context: it was not alleged that the appellant had a tendency to abuse his authority over children in any particular way, such as taking advantage of the homesickness of 'B' and 'C', in order to facilitate acts of the nature of the alleged offending. Nor was it alleged that the appellant had a tendency to act impulsively with a risk of detection. Nor was it alleged that the acts, or their circumstances, bore any similarity to the alleged offences, other than as demonstrating a sexual interest in early teenage boys. The tendency was described no more specifically than 'acting' upon the appellant's sexual interest in early teenage male children under his supervision.
The defence say that if the possession of the child exploitation material the subject of counts 3 and 4 shows that the accused does have a sexual interest in young girls, the possession of that material does not show that he has a tendency to act on that sexual interest in any other way than to possess and view those images. Therefore they argue there is not sufficient nexus between viewing those images in the privacy of the accessed own home and a touching of young girls which occurred in public.
The defence say the possession and viewing of category 1 child exploitation material in private does not make an actual touching of young girls in public more likely.
The State's submissions
The State point out that no formal admissions have been made by the accused and that in relation to counts 1 and 2 the facts likely to be in issue are:
1.Whether the complainants were touched on the buttocks.
2.Whether it was the accused who touched her.
3.If so, whether it was deliberate.
4.If so, whether it was indecent.
In relation to the element of indecency the State say that it is relevant as to whether or not the accused has a sexual motive for the touching: HTD v The State of Western Australia [No 2] [2019] WASCA 39.
In relation to count 3 they say the issues are likely to be whether the image was child exploitation material and whether the accused was in possession of that material. In relation to count 4 the issues are likely to be whether the images constituted child pornography material and whether the accused had accessed that material.
The State say that the accused's possession of the images in count 3 and accessing the images in count 4 show a tendency by him to have a particular state of mind, namely a sexual interest in pre‑adolescent girls, aged between the ages of around about 8 and 13 years of age.
The State say that if the jury were satisfied that such a tendency existed, then that state of mind does effect, to a significant extent the jury's assessment of whether they are satisfied beyond reasonable doubt that it was the accused that touched the complainants on the buttocks, that he did so deliberately and not accidentally, and that he had a sexual motivation for doing so. The state of mind of the accused, that is his sexual interest in pre‑adolescent girls, is therefore a significant piece of circumstantial evidence.
The State accepts that in McPhillamy at [27] the High Court said that generally it is a tendency to act on a sexual interest, not the sexual interest alone in which gives tendency evidence significant probative value.
The State say that first of all those remarks were obiter and McPhillamy can be distinguished both in fact and principle from the present case.
They say that in McPhillamy the court was dealing with proposed propensity evidence which involved conduct occurring 10 years before the charged offence. It was actual conduct which was sought to be led as tendency evidence whereas in this case the State are seeking to lead the evidence to show the accused's state of mind. In McPhillamy the prosecution were seeking to establish a link between the two incidents as a result of the physical contact whereas in this case they are simply seeking to establish the link between the propensity evidence and the charged offences as the state of the mind of the accused.
The State accept that the evidence is expressed in reasonably general terms that is a sexual interest in pre‑pubescent girls. The State stress the temporal connection between the propensity evidence and the proposed propensity evidence in counts 1 and 2. The State accept that the acts of possessing and viewing the material and touching are dissimilar acts however the State maintains that it is the state of mind of the accused that is the sexual interest that is of significance.
They point out that in McPhillamy the conduct was literally a decade apart, as in this case there is close proximity in time between the conduct the subject of counts 1 and 2 and counts 3 and 4.
Further, the State submit that in McPhillamy the issue was whether the appellant's sexual conduct towards two witnesses a decade before the alleged offence against the different complainant had significant probative value, whereas this is not the type of evidence sort to be led in the present case.
Conclusion
In this case there is clearly a temporal connection between the possession and the accessing of the images the subject of counts 3 and 4 and the offending the subject of counts 1 and 2.
However, all of the facts and circumstances must be considered in assessing whether the evidence has significant probative value.
The nature, quality, extent and duration of the conduct the subject of the propensity evidence and the nature, quality, extent and duration of the conducts the subject of the charges must be considered.
The extent of the rational connection between the conduct the subject of the propensity evidence and the conduct the subject of the charges all bear on whether the propensity evidence has significant probative value: DKA v The State of Western Australia.
In McPhillamy it establishes that generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. However two matters must be examined. Firstly, does the proposed evidence establish the tendency the State allege and secondly, is the tendency evidence significantly probative in the proof of the charged offence.
The tendency the State allege in the propensity evidence shows the propensity of the accused to have a particular state of mind, that is, a sexual interest in pre‑adolescent girls, as opposed to a tendency to act in a particular way, that is, touching the pre‑adolescent girls.
The possession of the images the subject of counts 3 and 4 are capable of demonstrating the accused has a sexual interest in pre‑adolescent girls aged between the ages of 8 and 13 years.
The next issue is whether either alone or in combination with other evidence the propensity evidence is significantly probative in the proof of the charged offence. I consider that the nature of possessing and viewing child exploitation images through a computer in the privacy of the accused own home is quite different to the act of physically touching young girls in a public shopping centre. The nature of the acts are so different that it lacks significant probative value.
Showing the accused has a state of mind, namely a sexual interest in pre‑adolescent girls, is not significantly probative of whether the touching occurred, whether it was the accused who did the touching, whether it was deliberate or accidental or whether it was indecent.
Fair-minded test
As I have found that the evidence lacks significant probative value, it is not necessary for me to go on to consider the fair‑minded test. However, in case I am in error in my determination that the evidence lacks significant probative value, I do examine the fair‑minded test.
In DKA v The State of Western Australia referred to a number of facts as being relevant to the fair‑minded test.
Firstly, the court is required to assess the degree of risk of unfairness at trial that would be occasioned by the admission of the evidence in question.
Secondly, when assessing the risk the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice and the likely effect on the jury.
Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair‑minded people would draw from the comparison of the issues. Fair‑minded people are reasonable members of the general community who are not lawyers, however it must be assumed that such people have informed themselves of at least the most basic consideration relevant to arriving at a conclusion founded on a fair understanding of all the relevant facts.
It is recognised that the weighing process is a difficult one as it requires weighing things that are incommensurable in the framework of the construct of a hypothetical or fair‑minded person.
The risk that the proposed evidence will be misused is generally that a jury may have a strong tendency to believe that the accused is guilty of counts 1 and/or 2 because they will reason that he is the person likely to do such acts because of the evidence sought to be led in respect of counts 3 and 4.
Further, the risk is that the jury could become confused or distracted as a result of the propensity evidence and condemn the accused because of their disapproval of his conduct in respect of counts 3 and 4.
The jury can be instructed in the proper use of the evidence.
The risk of evidence misuse could be overcome by jury direction about the basis of admissibility and the manner in which the evidence may and may not be used: The State of Western Australia v Osborne [2007] WASCA 183 [39].
It is well accepted that the jury will accept and faithfully apply the directions of a trial judge: Mansell v The State of Western Australia [2009] WASCA 140 [49].
If the evidence the subject of counts 3 and 4 was of significant probative value and it was not led in relation to counts 1 and 2 the jury would be considering the potential of an innocent or accidental touching in a vacuum.
If the evidence the subject of counts 3 and 4 was of significant probative value I would have found that fair‑minded people would think the public interest in adducing all relevant evidence of guilt must have priority of the risk of an unfair trial. In those circumstances I would have ruled the evidence in relation to counts 3 and 4 admissible in relation to counts 1 and 2 and there would have been no basis to sever the indictment as is accepted by all parties.
However I have found that the evidence in relation to counts 3 and 4 does not have significant probative value in relation to counts 1 and 2 and in those circumstances the parties properly accept that there would be a real risk of impermissible prejudice to the accused if the four counts were tried .
I order that counts 1 and 2 be tried together but separately from counts 3 and 4.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AO
Associate to Judge Bowden3 JULY 2019
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